Skok v. State, 22

• Court: Court of Appeals of Maryland
• Citation: 760 A.2d 647,361 Md. 52
• Docket Number: No. 22,22
• Parties: Pasquale Joseph SKOK v. STATE of Maryland.
• Decision Date: 10 October 2000

760 A.2d 647
361 Md. 52

Pasquale Joseph SKOK
v.
STATE of Maryland

No. 22, Sept. Term, 1999.

Court of Appeals of Maryland.

October 10, 2000.

760 A.2d 648

Peter A. Prevas (Konstantine J. Prevas of Prevas & Prevas, on brief), Baltimore, for Petitioner/Cross-Respondent

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for Respondent/Cross-Petitioner.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and ROBERT L. KARWACKI (Retired, Specially Assigned), JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case to resolve important questions concerning the right to appeal in a coram nobis action and the issues which may properly be raised in such an action.

I.

The plaintiff, Pasquale Joseph Skok, is a native of Italy and is now about 26 years old. He has been a lawful permanent resident of the United States since he was

760 A.2d 649

14 years old when he was legally adopted by William H. Skok and Dorothy M. Skok who are United States' citizens by birth. Skok presently resides with his parents in College Park, Maryland

On February 18, 1994, in the Circuit Court for Prince George's County, Skok pled guilty to possession of cocaine, a misdemeanor proscribed by Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 287. The Circuit Court accepted the guilty plea, sentenced Skok to imprisonment for two years, and suspended all but the time served of three days.

In October 1994, again in the Circuit Court for Prince George's County, Skok entered a plea of nolo contendere to another charge of possession of cocaine in violation of Art. 27, § 287. The court accepted the plea and sentenced Skok to imprisonment for one day, with credit for the one day he had spent in jail.

Skok was represented by counsel in both of the 1994 cases. In neither case was there a motion to withdraw the pleas pursuant to Maryland Rule 4-242(f). Skok also did not file an application for leave to appeal pursuant to Code (1974, 1989 Repl. Vol.), § 12-302(e) of the Courts and Judicial Proceedings Article and Rule 8-204.

Subsequently, the United States Immigration and Naturalization Service initiated deportation proceedings against Skok based upon the judgments in the 1994 circuit court drug possession cases. Apparently a deportation order was issued, and Skok's appeal to the Board of Immigration Appeals is pending.

On November 24, 1997, Skok instituted the present action by filing in the Circuit Court for Prince George's County a pleading entitled "Petition For Writ Of Error Coram Nobis, Motion For New Trial And Petition For Writ Of Audita Querela." Skok sought orders vacating the criminal judgments. According to Skok, both criminal judgments should be vacated because, in accepting the guilty plea and the nolo contendere plea, the Circuit Court failed to comply with the requirements of Rule 4-242(c) and (d).¹ Skok asserted that the Circuit Court, in accepting his guilty plea in February 1994, violated Rule 4-242(c) because the court did not require that the facts supporting the plea be read in open court in the defendant's presence, did not expressly find on the record that the factual basis supported a finding of guilty, did not advise Skok of the possible consequences of his plea, and did not properly advise Skok of his right to a jury trial. Skok claimed that the Circuit Court, in

760 A.2d 650

accepting his nolo contendere plea in October 1994, violated Rule 4-242(d) because there was no examination of Skok in open court for a determination that the plea was made voluntarily, with an understanding of the nature of the charge and the consequences of the plea. Skok also contended that due process principles were violated because both pleas were involuntary, that they were not knowingly and intelligently made, and that there was no valid waiver of his rights, including his right to jury trials

Skok argued in the Circuit Court that the violations of Rule 4-242 and due process entitled him to the "post-conviction relief" of vacating the 1994 judgments. Skok contended that relief under a writ of error coram nobis is available "where relief is unavailable under the post-conviction procedure act" and that writs of error coram nobis "have been used in modern practice to right a judicial wrong where no other remedies are available." Alternatively, Skok asserted that the alleged violations of Rule 4-242 constituted "`mistake' and/or `irregularity'" and warranted post conviction relief under Rule 4-331(b).² Finally, Skok argued that the "ancient common law Writ of Audita Querela exists in Maryland Common Law," and that, "although the Writ of Audita Querela has fallen into disuse it is still available ... as a mechanism to obtain relief from the consequences of a judgment of conviction which were unknown at the time of the entry of conviction" and "where the equities of the case compel such a result."³

760 A.2d 651

The Circuit Court initially issued an order denying "without prejudice" Skok's petition for a writ of error coram nobis, his petition for a writ of audita querela, and his motion for new trials. The court's order stated that the motion for new trials was untimely. With regard to coram nobis, the court, inter alia, stated that "a Writ of Error Coram Nobis will not be granted where the defendant has another adequate remedy such as a post conviction proceeding." Skok filed a motion for reconsideration, emphasizing "that post-conviction relief is not available since at the time of filing the Petitions, Skok was neither incarcerated under sentence of imprisonment nor on parole or probation."⁴ Skok reiterated his arguments that Rule 4-242 was violated and "that the ... pleas in both cases are defective under Boykin v. Alabama, 395 U.S. 238[, 89 S.Ct. 1709, 23 L.Ed.2d 274] (1969)." The Circuit Court denied the motion for reconsideration, stating that "[a] Writ of Error Coram Nobis is an extreme remedy and is not appropriate relief in this case."

Skok appealed to the Court of Special Appeals, arguing that he was entitled, by coram nobis or a motion for new trial, "to collaterally challenge ... the guilty [and nolo contendere] pleas in two separate convictions for possession of cocaine entered in ... 1994." (Skok's brief in the Court of Special Appeals at 1). Skok abandoned

760 A.2d 652

his reliance on audita querela, stating that he "does not appeal from the denial of his Petition for Writ of Audita Querela" (id. at 2, n. 1). Skok contended that a writ of error coram nobis was "viable in Maryland as a means of collaterally attacking" criminal judgments "when Post-Conviction Relief does not exist under" the Maryland Post Conviction Procedure Act (id. at 5) and that the 1994 judgments were infirm because of the violations of Rule 4-242(c) and (d), as well as the constitutional principles set forth in Boykin v. Alabama, supra. Skok acknowledged that his motion for new trials was untimely unless there was fraud, mistake, or irregularity within the meaning of Rule 4-331(b), and suggested that relief based on "mistake or irregularity" should be "as broad as Coram Nobis Relief." (Appellant's brief in the Court of Special Appeals at 14-15).

The State, in its brief to the Court of Special Appeals, moved to dismiss Skok's appeal, relying upon language in the Maryland Post Conviction Procedure Act, Art. 27, § 645A(e), concerning the right to appeal in habeas corpus cases. The State also argued that the Circuit Court's judgment was correct.

The Court of Special Appeals denied the State's motion to dismiss the appeal and affirmed the judgment of the Circuit Court. Skok v. State, 124 Md.App. 226, 721 A.2d 259 (1998). Although the intermediate appellate court did state that Rules 4-242(c) and 4-242(d) had been violated in Skok's two trials for possession of cocaine, Skok, 124 Md.App. at 228-229, 721 A.2d at 260-261, the court held that, in Maryland, coram nobis relief can only be granted when "based on facts not known to the trial judge when the plea was accepted." Skok, 124 Md.App. at 234, 721 A.2d at 263. The Court of Special Appeals continued: "Both [convictions] were based on careless procedural errors committed by the trial judge, not upon facts unknown to the trial judge. This is fatal to appellant's claim." Ibid. With regard to Skok's motion for a new trial based on "mistake" or "irregularity" under Rule 4-331(b), the Court of Special Appeals "assumed, arguendo," that the violations of Rule 4-242(c) and (d) constituted "irregularity" within the meaning of Rule 4-331(b), but held that Skok had failed to act "with ordinary diligence." Skok, 124 Md.App. at 242-243, 721 A.2d at 267-268.

Skok filed in this Court a petition for a writ of certiorari, challenging both the holding of the Court of Special Appeals concerning the availability of coram nobis relief and the decision that he was not entitled to relief under Rule 4-331(b). The State filed a conditional cross-petition for a writ of certiorari, contesting the Court of Special Appeals' decision that Skok had a right to appeal from the denial of coram nobis relief. We granted both the petition and the cross-petition. Skok v. State, 354 Md. 112, 729 A.2d 404 (1999).

II.

As it is a threshold question, we shall first consider the State's argument that "the Court of Special Appeals incorrectly held that Skok had the right to appeal from the denial of coram nobis relief." (State's brief at 3). The State contends that no appeal may be taken in a coram nobis case brought to challenge a conviction or sentence. The State relies upon a portion of the pertinent language in the Maryland Post Conviction Procedure Act, which it quotes out of context, and upon four opinions by this Court, namely Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993); Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898, cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990); Valentine v. State, 305 Md. 108, 501 A.2d 847 (1985); and Brady...