Rivera v. State

• Decision Date: 03 July 2008
• Docket Number: No. 1539, September Term, 2007.,1539, September Term, 2007.
• Citation: 180 Md. App. 693,952 A.2d 396
• Parties: Juan RIVERA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

952 A.2d 396

180 Md. App. 693

Juan RIVERA v. STATE of Maryland.

No. 1539, September Term, 2007.

Court of Special Appeals of Maryland.

July 3, 2008.

Gary E. Bair, Greenbelt, for appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: SALMON, MEREDITH and LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

LAWRENCE F. RODOWSKY, J., Retired, Specially Assigned.

Appellant, Juan Rivera (Rivera), asks us to reverse the denial by the Circuit Court for Montgomery County of his petition for a writ of error coram nobis. By that writ, he sought to have the court find invalid his guilty plea to a charge that arose out of allegations of sexual child abuse. Motivating Rivera's petition is incarceration by the United States Immigration and Customs Enforcement agency (ICE) and threatened deportation. Before us, Rivera launches many attacks on his guilty plea, none of which do we find persuasive.

There is a history behind Rivera's guilty plea. He is the father of a daughter, A.R., born February 17, 1989. Rivera is a native and citizen of Peru. Sometime prior to January 1, 1997, he entered the United States at a place and on a date unknown to ICE. About August 23, 2000, Rivera adjusted his immigration status to that of a lawful permanent resident.

In 2003, Rivera and his wife, A.R.'s mother, were engaged in a divorce proceeding in Montgomery County. On August 12 of that year, an evaluator from the Family Division of the circuit court met with Rivera in connection with custody issues in the domestic litigation. Although there were no allegations of sexual child abuse against Rivera that were known to the evaluator, he told the evaluator that his wife's allegations against him were totally made up. According to the State's proffer of proof at the guilty plea hearing, Rivera further stated to the evaluator

"that on one occasion, [A.R.] came into his room at night, and got into bed with him and his wife, [A.R.] got in between the two adults. The defendant stated, he grabbed [A.R.] and subsequently got an erection. Juan Rivera stated, that he realized it was his daughter, and pulled away."

Also according to the State's proffer, A.R., at age fourteen, was interviewed by Child Protective Services on September 12, 2003. She stated "that her father had committed an anal intercourse act with her, when she was approximately eight years old." This had occurred during 1997 in Gaithersburg. A.R.'s mother was also interviewed and, per the State's proffer, stated that Rivera "had approached her in 1997, and apologized for abusing [A.R.]. He stated he had been rubbing [A.R.'s] back and ended on top of her."

Rivera was arrested October 8, 2003. The charging document, No. 004D00137631, alleged second- and third-degree sexual offenses and child abuse, carrying maximum potential penalties of forty-five years. The sentencing guidelines were ten to twenty-one years. By letter of November 14, 2003, to defense counsel, the State offered to accept a plea to one count of third-degree sex offense, carrying a maximum penalty of ten years imprisonment and, under the guidelines, probation to two years. Expiration date of the offer was Monday, December 8, 2003. Under defense counsel's normal procedure, copies of all communications from the State's Attorney are forwarded to the client. Rivera did not accept the State's offer.

A five-count indictment was filed against him on January 15, 2004, in Criminal No. 99237. Count I alleged sexual child abuse in violation of former Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 35C. That offense is a felony, punishable by up to fifteen years imprisonment. A sentence under former § 35C could be imposed "separate from and consecutive to or concurrent with a sentence for any offense based upon the act or acts establishing the abuse." § 35C(b)(3). The second count charged second-degree sex offense, a felony carrying imprisonment for up to twenty years. The remaining counts charged third-degree sexual offense.

The original trial date for the case was June 7 before Judge Johnson, but, at the request of Rivera, trial was postponed beyond the Hicks date, with the approval of the administrative judge, to October 12, 2004, for trial before Judge Scrivener.¹

Negotiations between the State and defense counsel underlay the postponement. By letter of August 12, 2004, the State offered to amend Count I of the indictment in Criminal No. 99237 to charge violation of Maryland Code (1974, 2002 Repl. Vol.), § 3-8A-30 of the Courts and Judicial Proceedings Article (CJ). That statute in relevant part provided:

"(a) In general. — It is unlawful for an adult wilfully to contribute to, encourage, cause or tend to cause any act, omission, or condition which results in a violation, renders a child delinquent or in need of supervision.

"(b) Child need not be found to have committed violation. — A person may be convicted under this section even if the child has not been found to have committed a violation or adjudicated delinquent or in need of supervision. ...

"(c) Penalty. — An adult convicted under this section is subject to a fine of not more than $2,500 or imprisonment for not more than 3 years, or both. The court may suspend sentence and place the adult on probation subject to the terms and conditions it deems to be in the best interests of the child and the public."²

The guidelines for this offense were "probation to probation." The prosecutor's August 12, 2004 letter included the following passages:

"In previous conversations that you and I have had, there was a concern that a plea to this charge would make your client deportable. I have since had an opportunity to speak to Christine Carlson, Special Agent for U.S. Department of Homeland Security, Immigration and Customs Enforcement, who has informed me that a Contributing charge does not make a defendant eligible for deportation proceedings. It is a charge that INS does not `look behind' as they would with a second degree assault. Please feel free to contact Ms. Carlson at 410-962-7449 to confirm this information.

"In light of the fact that your client is facing a substantial penalty should the State prevail at trial, it is the State's position that he should entertain this very generous offer to prevent his daughter any further pain and trauma that would be incurred should she have to testify. This offer is being extended to your client at this late juncture because the State is highly concerned as to the emotional well being of [A.R.]"³

The offer was to expire by its terms on September 14, 2004.

Negotiations continued, as evidenced by a letter dated October 4, 2004, from defense trial counsel to the prosecutor, with a copy to Rivera. The letter opened by stating:

"This letter will confirm a telephone message I left for you on October 1, 2004, as well as our discussions last week. My client remains willing to plead guilty to a charge of contributing to a condition which would place his daughter in need of assistance, § 3-828(a) of the Courts Article. He understands that this charge is a misdemeanor, and that it ordinarily carries a maximum possible sentence of three years and a fine of $2,500.00."

Maryland Code (2002), CJ § 3-828 defines the crime as follows:

"(a) Prohibition. — An adult may not wilfully contribute to, encourage, cause or tend to cause any act, omission, or condition that renders a child in need of assistance.

"(b) Child need not be adjudicated a CINA. — A person may be convicted under this section even if the child is not adjudicated a CINA."

"`CINA' means a child in need of assistance." CJ § 3-801(g).

"`Child in need of assistance' means a child who requires court intervention because:

"(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and

"(2) The child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's needs."

CJ § 3-801(f).

Counsel's letter further stated:

"The plea offer you have made requires that Mr. Rivera not be incarcerated at the original disposition, and that his suspended sentence be less than one year in duration (360 days is the preferred sentence to prevent immigration consequences). The duration of probation is up to the sentencing judge, and I understand you will argue that it should be long enough for [A.R.] to reach age 18. My client would agree to provide assistance to [A.R.] in connection with college tuition and other expenses.

. . . .

"It is also important to the plea — and already agreeable to you — that the petition include neutral language essentially tracking the wording of the statute, and without specific allegation of sexual abuse. My client still disputes [A.R.'s] claims, but recognizes that situations within the home have contributed to her need for therapy and other support. He remains interested in her welfare, and wants to promote future family reunification. Of course, he understands that it will be a condition of probation that he have no contact with [A.R.] until and unless she initiates it."

On October 7, 2004, defense trial counsel hand-delivered to the prosecutor, with a copy to Rivera, a letter, reading in part as follows:

"As we discussed last night, I had a meeting this morning with my client to review all of the terms of the proposed plea in this case, and to obtain a firm decision of the basic issue of plea versus trial. Having just met with him, I am able to report that he is prepared to go forward with the plea under the terms outlined in my letter to you of October 4, 2004, and your response of the same date."⁴

The agreement included a provision for Rivera to contribute to A.R.'s college tuition and for Rivera to be diagnostically examined.

Pursuant to the agreement, the State instituted Criminal No. 101007 by a one-count information charging that Rivera "did willfully contribute to, and...