Ruby v. State

• Decision Date: 22 February 1999
• Docket Number: No. 84,84
• Parties: Carl Walter RUBY v. STATE of Maryland.
• Court: Maryland Court of Appeals

724 A.2d 673

353 Md. 100

Carl Walter RUBY v. STATE of Maryland.

No. 84, Sept. Term, 1998.

Court of Appeals of Maryland.

February 22, 1999.

Daniel H. Weiss, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

CATHELL, Judge.

Petitioner Carl Walter Ruby was granted a belated criminal appeal by the Circuit Court for Allegany County pursuant to that court's grant of his petition for writ of error coram nobis. Petitioner appealed to the Court of Special Appeals. Upon a motion by the State and based upon the intermediate appellate court's determination that it lacked jurisdiction to hear the matter because, in its view, the circuit court had improperly granted the petition for writ of error coram nobis, the Court of Special Appeals dismissed petitioner's belated appeal. We granted certiorari to address that dismissal.

We shall vacate the Court of Special Appeals' dismissal and remand the matter to that court to address the issues raised by petitioner in his belated criminal appeal.

I. Facts and Procedural History

Petitioner was involved in an automobile accident in Cumberland, Maryland, on November 25, 1993. According to Mary O'Neal, her car was struck by a car occupied by petitioner and his mother. O'Neal testified that petitioner was the driver of the car and petitioner's mother was the passenger. After the accident, petitioner's mother urged O'Neal not to contact the police to report the accident. The police were called and when they arrived, it was learned that petitioner's driver's license was suspended. Petitioner told the state trooper that his mother had been the driver. Both petitioner and his mother testified at trial that she was driving the car when the accident occurred.

Petitioner was convicted by a jury in the Circuit Court for Allegany County of driving while suspended and knowingly giving false accident report information to a police officer. He was convicted separately by the court of failure to yield the right of way. Petitioner was sentenced to consecutive terms of sixty days and one year in the Allegany County Detention Center, plus a fine of fifty dollars and two years of unsupervised probation following his release from custody. The Court of Special Appeals affirmed petitioner's convictions in an unreported opinion, filed April 25, 1995.

After the intermediate appellate court affirmed petitioner's convictions, he filed a motion for new trial on June 22, 1995, on the ground of newly discovered evidence.¹ The motion was denied following a hearing on September 20, 1995, at which petitioner appeared without counsel. Petitioner appealed, and the Court of Special Appeals vacated that denial in an unreported opinion, filed June 12, 1996. That court held the trial court inadequately inquired into petitioner's waiver of counsel and remanded the matter to the circuit court for a new hearing on the motion for new trial.

Pursuant to the remand by the Court of Special Appeals, the circuit court held another hearing on the motion for new trial on December 5, 1996, but held its decision sub curia. The next day, the court issued a memorandum opinion and order denying the motion. Evidently, the court clerk failed to send a copy of the order to both petitioner and the State's Attorney. Petitioner became aware of the court's action after the thirty-day period for filing a timely appeal expired.

On March 18, 1997, petitioner filed a motion for a belated appeal of the trial court's December 6, 1996, denial of his motion for a new trial. The circuit court denied petitioner's motion for a belated appeal on March 25, 1997. Petitioner sought reconsideration of the order denying his motion for a belated appeal on April 1, 1997, which was denied on April 17, 1997. Petitioner also filed a motion for reconsideration of the denial of his motion for new trial on April 1, which the court similarly denied on April 21.

Petitioner then filed in the circuit court a Petition for Writ of Error Coram Nobis on May 2, 1997, requesting as relief a belated appeal of the December 6, 1996, denial of his motion for a new trial. This petition was assigned a civil ("Misc.") case number, and was dealt with as a civil matter. The circuit court, sitting as a civil court, issued the writ on May 30, 1997, granting petitioner a belated appeal of the denial of his motion for a new trial in his original criminal case. The State did not appeal from the circuit court's grant of the Writ of Error Coram Nobis.

Petitioner noted a belated appeal in the criminal case on June 4, 1997, pursuant to the leave granted by the writ.² The Court of Special Appeals, upon a motion by the State, dismissed the appeal in a reported opinion, holding that it did not have jurisdiction to hear the appeal because the circuit court improperly issued the writ of error coram nobis. This Court issued a writ of certiorari on August 26, 1998. Because the Court of Special Appeals considered and decided the wrong case, we shall, as we have indicated, vacate its judgment and order that court to consider the question properly raised by petitioner in his belated appeal.³

II. Discussion and Analysis

A writ of error coram nobis is a common law tool primarily used to correct factual errors by a court. This Court has discussed its use and application many times. Judge Delaplaine described the writ most thoroughly in Madison v. State, 205 Md. 425, 432, 109 A.2d 96, 99 (1954):

At common law the ancient writ of error coram nobis has been available to correct errors of fact. It has been allowed, without limitation of time, for facts affecting the validity and regularity of the judgment, and has been used in both civil and criminal cases. While the occasions for its use have been infrequent, no one has doubted its availability. It is still available in Maryland in both civil and criminal cases.... [C]oram nobis will not lie (1) to correct an issue of fact which has been adjudicated, even though wrongly determined, or (2) to determine whether any witnesses testified falsely at the trial, or (3) to present newly discovered evidence, or (4) to strike out a conviction on the ground that the prosecuting witness was mistaken in his identification of the accused as the person who committed the crime. The purpose of the writ is to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.

See also Johnson v. State, 215 Md. 333, 336, 138 A.2d 372, 373 (1958)

; Bernard v. State, 193 Md. 1, 3-4, 65 A.2d 297, 298 (1949); Keane v. State, 164 Md. 685, 689-93, 166 A. 410, 411-13 (1933); Hawks v. State, 162 Md. 30, 31-32, 157 A. 900, 901 (1932); Jones v. State, 114 Md.App. 471, 475, 691 A.2d 229, 230-31,

cert. denied, 346 Md. 27, 694 A.2d 950, and cert. denied, ____ U.S. ____, 118 S.Ct. 304, 139 L.Ed.2d 234 (1997). See also United States v. Morgan, 346 U.S. 502, 507-08, 74 S.Ct. 247, 250-51, 98 L.Ed. 248 (1954). Because Maryland adopted the Common Law of England as it existed on July 4, 1776, subject to constitutional conflict, legislative amendment, or modification by this Court, see Md. Declaration of Rights, Art. 5(a), the common law writ of error coram nobis is a procedure still available in this State. We expressly recognized its use and availability in Madison, 205 Md. at 432,

109 A.2d at 99. The usefulness of the writ of error coram nobis has been diminished, however, to some extent, by the Post Conviction Procedure Act (the Act).⁴

A writ of error coram nobis, like a habeas corpus proceeding and a proceeding under the Act, still may be used to collaterally challenge a criminal judgment. We have said: "A defendant who is prevented from challenging the constitutionality of a prior conviction ... is not thereby divested of an opportunity for relief. That defendant may thereafter mount a collateral challenge by any means that remain available, including... error coram nobis ...." Fairbanks v. State, 331 Md. 482, 492-93, 629 A.2d 63, 68 (1993) (some emphasis added; footnote omitted). We also noted in Fairbanks that "[t]he writ of error coram nobis, addressed to the court that entered judgment, may be available to the defendant who is no longer in custody." Id. at 492 n. 3, 629 A.2d at 68 n. 3. See also Gluckstern v. Sutton, 319 Md. 634, 662, 574 A.2d 898, 912

(describing the Post Conviction Procedure Act as a statutory substitute, under most circumstances, for the collateral common law remedies of habeas corpus and writ of error coram nobis), cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990); Jones, 114 Md.App. at 478,

691 A.2d at 232 (explaining that a "writ of error coram nobis remains available ... as a remedy to mount a collateral attack upon a prior conviction or sentence."). Cf. Blizzard v. State, 218 Md. 384, 388-89 & n. 3, 147 A.2d 227, 229-30 & n. 3 (1958) (noting overlap of the Act and Defective Delinquent Law, which was a civil proceeding, and similarity between the Act and former habeas corpus cases, which were civil in nature); Roberts v. Director of Patuxent Institution, 226 Md. 643, 652, 172 A.2d 880, 885 (1961) (noting Blizzard analogy and holding post conviction procedures were not appropriate because applicant was not attacking validity of sentence; rather, habeas corpus or other collateral proceedings would be proper).

A collateral challenge, by its very nature, is a separate and distinct civil procedure by which a defendant may challenge his or her conviction, sentence, or imprisonment. See State Bar Ass'n, Inc. v. Kerr, 272 Md. 687, 689-90, 326 A.2d 180, 181 (1974)

(noting, in discussing the concept of final judgments, that the federal...