Skok v. State

• Decision Date: 07 December 1998
• Docket Number: No. 528,528
• Citation: 721 A.2d 259,124 Md. App. 226
• Parties: Pasquale Joseph SKOK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

721 A.2d 259

124 Md. App. 226

Pasquale Joseph SKOK v. STATE of Maryland.

No. 528, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 7, 1998.

Peter A. Prevas (Konstantine J. Prevas and Prevas & Prevas, on brief), Baltimore, for appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Gwynn X. Kinsey, Jr., Asst. Atty. Gen., Baltimore, and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on brief), for appellee.

Argued before SALMON, EYLER and KENNEY, JJ.

SALMON, Judge.

The appellant, Pasquale Skok, on February 18, 1994, pled guilty in the Circuit Court for Prince George's County to possession of Cocaine (Case No. 1). He was sentenced to two years imprisonment with all but three days of the sentence suspended in favor of two years probation. Because he had already served three days in jail, he was released immediately after sentencing. In taking the plea, the trial judge did not comply with the dictates of Maryland Rule 4-242(c) because she did not explain to appellant on the record the consequences of the plea. See State v. Thornton, 73 Md. App. 247, 253-54, 533 A.2d 951 (1987).¹

Later in 1994, on October 17th, appellant entered a plea of nolo contendere, in the Circuit Court for Prince George's County to another charge of possession of cocaine (Case No. 2). His sentence for the second offense was even more lenient than in Case No. 1. He was sentenced to one day incarceration, with credit for the one day he had already spent in jail. Court costs were waived. In violation of Maryland Rule 4-242(d),² neither the trial judge, the prosecutor, nor the defense attorney made any on-the-record examination of the defendant to determine if he was entering the plea voluntarily with an understanding of the nature of the charges and the consequences of the plea.

In both Cases Nos. 1 and 2 appellant was represented by counsel. Despite the facts that the plea in Case No. 1 had not been taken in compliance with Maryland Rule 4-242(c) and in Case No. 2 there was a failure to comply with Rule 4-242(d), neither counsel moved to withdraw the pleas pursuant to Maryland Rule 4-242(f).³ Likewise, neither counsel filed a motion for leave to appeal in either Case Nos. 1 or 2. Compare Md. Rule 8-204.⁴

On June 1, 1995, the United States Immigration and Naturalization Service initiated deportation proceedings against appellant, who is a native of Italy. The basis for the deportation was appellant's plea of nolo contendere in Case No. 2 and his conviction in Case No. 1.

More than two and one-half years after the commencement of the deportation proceedings, appellant filed, in both Case Nos. 1 and 2, a petition for a writ of coram nobis, a motion for new trial, and a petition for a writ of Audita Querela.⁵ Both the petitions and the motions for new trial were based on the fact that the trial judges had failed to comply with Maryland Rule 4-242 when accepting appellant's pleas.

Circuit Court Judge Darlene Perry, in Case Nos. 1 and 2, denied both petitions and the motions for new trial. Appellant noted this appeal and raises two questions:

I. Did the circuit court err in denying appellant's petition for writ of error coram nobis regarding the February 18, 1994 conviction and the October 17, 1994 nolo contendere plea?

II. Did the circuit court err in denying appellant's motion for new trial under Maryland Rule 4-331(b) based upon "mistake" or "irregularity" in the proceeding leading up to the February 18, 1994 conviction or in the October 17, 1994 acceptance of the nolo contendere plea?

A. ISSUE I—WRIT OF ERROR CORAM NOBIS

Appellant contends that Judge Perry erred in denying the petitions for writ of coram nobis. Before deciding the merits of this argument, we must first address the State's argument that this Court has no jurisdiction to decide whether the writs should have been granted because no statute grants appellant the right to appeal the denial of a writ of coram nobis. In support of its argument that this Court lacks jurisdiction, the State relies on Ruby v. State, 121 Md.App. 168, 708 A.2d 1080, cert. granted, 351 Md. 7, 715 A.2d 965 (1998).

In Ruby, the defendant in a criminal case filed a motion for new trial, which was denied, but Ruby's trial counsel did not learn of the denial until ten weeks later. See id. at 172, 708 A.2d 1080. Defense counsel then filed a writ of coram nobis for the sole purpose of allowing a belated appeal. See id. The trial court granted the writ. See id. We recognized that an appellate court would have no jurisdiction to hear Ruby's belated appeal unless the writ of coram nobis had been properly granted. See id. at 173-74, 708 A.2d 1080. For reasons discussed thoroughly below, the Ruby Court held that the writ was improperly granted and thus dismissed the appeal as untimely. Unlike Ruby, in the case at hand, the appeal from the action of the trial court was timely.

In Jones v. State, 114 Md.App. 471, 691 A.2d 229,cert. denied, 346 Md. 27, 694 A.2d 950, cert. denied, ___U.S. ___, 118 S.Ct. 304, 139 L.Ed.2d 234 (1997), the defendant, Jones, pleaded guilty in 1975 to the crime of assault with intent to murder and was sentenced to five years imprisonment. See id. Seventeen years later he filed a writ of error coram nobis based on the (alleged) fact that his guilty plea was taken when he was under the influence of heroin. See id. at 473, 691 A.2d 229. The trial judge denied the writ in March of 1994. See id. at 474, 691 A.2d 229. Jones instructed his attorney to file an immediate appeal, but either the attorney failed to file the appeal or, if an appeal was filed, it was not properly recorded by the clerks. See id. In January 1996, the trial court granted Jones the right to file a belated appeal. See id. In Jones, the principle issue, however, was whether an appeal could be taken from a denial of a writ of coram nobis. In Jones, Judge Getty for this Court said:

The question remains whether the right of appeal in coram nobis actions survived the adoption of Art. 27, § 645A(e), as amended in 1965. We hold that it does.

As we have stated herein, the Post Conviction Procedure Act was intended to replace habeas corpus and coram nobis as a statutory remedy for collateral challenges to criminal judgments. For the majority of cases it has succeeded. In those cases where the Post Conviction Act does not provide a remedy, however, the enactment of the new statute provided no reason for restricting appeals in habeas corpus cases. Gluckstern [v. Sutton], 319 Md. [634] at 662 [574 A.2d 898 (1990)]. The same reasoning should be applied to coram nobis. The writ of error coram nobis remains available, therefore, as a remedy to mount a collateral attack upon a prior conviction or sentence. We see no justifiable reason for denying a right of appeal in a coram nobis petition when the right of appeal is available to those seeking redress under habeas corpus. The right of further review ought not depend upon the name of the vehicle bringing one to the tribunal. The paucity of coram nobis petitions, moreover, will not unduly burden the appellate courts.

We perceive no error in the chancellor granting a belated appeal from his Order denying appellant coram nobis relief. See Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951), where the Supreme Court said that a judge "has power in a habeas corpus proceeding to dispose of the matter as law and justice require." Accord: Beard v. Warden, 211 Md. 658, 661, 128 A.2d 426 (1957), stating that a circuit court in a habeas corpus proceeding could order that a prisoner be granted a belated appeal from his original criminal conviction.

Id. at 478-79, 691 A.2d 229.

In the case sub judice, the Post Conviction Relief Act (the Act) is not available to appellant because the Act does not provide a remedy for persons whose sentences have been served and who are no longer on parole or probation. See Md. Ann.Code art. 27, § 645A(a). Therefore, appellant needed to seek relief outside the Act. To the extent that coram nobis relief may be available in certain instances, appellant has the right to appeal the denial of his request that the court issue a writ of coram nobis.

As to the merits of the petitions for a writ of coram nobis, neither of appellant's petitions was based on facts not known to the trial judge when the plea was accepted. Both 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. The Court of Appeals said in Jackson v. State, 218 Md. 25, 145 A.2d 234 (1958):

By the decided weight of authority * * * the [coram nobis] remedy is not broad enough to reach every case in which there has been an erroneous or unjust judgment on the sole ground that no other remedy exists, but it must be confined to cases in which the supposed error inheres in facts not actually in issue under the pleadings at the trial, and unknown to the court when the judgment was entered, but which, if known, would have prevented the judgment. See also Hawks v. State, 162 Md. 30 [157 A. 900 (1932)]; Bernard v. State, 193 Md. 1 [65 A.2d 297 (1949)]; Madison v. State, 205 Md. 425 [109 A.2d 96 (1954)]; Johnson v. State, 215 Md. 333 [138 A.2d 372 (1958)]; Johns v. State, 216 Md. 218 [140 A.2d 56 (1954)].

Id. at 27-28, 145 A.2d 234.

The Jackson Court relied on this "decided weight of authority" and affirmed the trial court's denial of a writ of coram nobis on the ground that the defendant had failed to allege facts unknown to the court when the judgment was entered. See id. at 27, 145 A.2d 234.

In Ruby, we were called upon to decide the same question at issue in Jackson, viz: Whether coram nobis provided relief only in cases in which the defendant could show facts that were unknown at the time judgment was entered, which would have prevented the entry of judgment, or whether, as appellant contended, the writ of coram...