Court of Appeals latches onto State’s laches argument to limit availability of coram nobis relief
In Jones v. State, No. 16, Sept. Term 2015, 2015 WL 8109905 (Md. Dec. 7, 2015), the Court of Appeals of Maryland significantly limited defendants’ ability to challenge their convictions and sentences through a writ of error coram nobis many years after the fact. Up until now, there have been many instances in which individuals in Maryland have had prior convictions overturned years after the fact because of a constitutional or other significant error that was overlooked at the time of conviction. That run of post-conviction successes may well be largely over after Jones.
First, a bit about the facts and procedural history in Jones. In April 1999, Corey Jones was charged in Baltimore City Circuit Court with several drug-related counts, including use of a minor for the purpose of distributing heroin and possession with intent to distribute heroin. On September 14, 1999, Jones indicated that he wanted to plead guilty to a drug-related charge.
The prosecutor informed the judge at the beginning of the proceeding that there was an agreement for Jones to plead guilty to “Count II” of an indictment. That was the count that charged Jones with use of a minor for the purpose of distributing heroin. The prosecutor read a statement of facts that was sufficient to support a plea to use of a minor to distribute heroin or, alternatively, a plea to possession with intent to distribute heroin.
Although the prosecutor referred to Count II – the use of the minor count – as the agreed-upon count of conviction, defense counsel informed Jones during the plea hearing that he was pleading guilty to a count of possession with intent to distribute. In response, Jones indicated that he understood he was pleading guilty to possession with intent to distribute heroin. Apparently, the judge, the prosecutor, and defense counsel all failed to notice the inconsistency concerning which of the charges Jones was pleading guilty to.
Nobody asked for any clarification as to whether the plea was to the use-of-the-minor count or to the possession-with-intent-to-distribute count. The judge, however, found that Jones’s guilty plea was “knowing and voluntary,” and sentenced him to six years of incarceration (with all but 18 months suspended and with credit for time served), followed by three years of supervised probation. The docket entries state that Jones pled guilty to use of a minor for the purpose of distributing heroin, not possession with intent to distribute heroin.
At the conclusion of the guilty-plea proceeding, Jones’s counsel advised him of his right to apply for leave to appeal within 30 days. Despite the ambiguity during the proceeding about which count Jones had pled guilty to, he did not move to withdraw his plea, move for a new trial, apply for leave to appeal, move to set aside an unjust or improper verdict, or petition for post-conviction relief. Then, almost six years later, in August 2005, Jones pled guilty to violating the order of probation, and the circuit court sentenced him to three years of incarceration.
On July 23, 2012, in the U.S. District Court for the District of Maryland, Jones pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because, in part, of his 1999 conviction in the Circuit Court for Baltimore City, Jones was, pursuant to the federal Armed Career Criminal Act, subject to a mandatory minimum of 15 years of incarceration. Without this prior conviction, Jones would have been subject to a maximum of 10 years of incarceration for his federal firearms offense.
On October 9, 2012, Jones filed a petition for a writ of error coram nobis in the circuit court. In the petition, Jones claimed that his 1999 guilty plea was involuntary because he had not been informed of the elements of the offense or the nature of the charge to which he pled guilty. He argued that the transcript of the guilty-plea proceeding left unclear whether he had pled guilty to use of a minor for the purpose of distributing heroin or possession with intent to distribute heroin.
In its response to the petition, the State contended that the doctrine of laches barred Jones from seeking coram nobis relief; alternatively, the State argued that Jones’s 1999 guilty plea was voluntary. At a hearing on the petition in the circuit court, the State called as a witness the police officer who was the sole eyewitness to the crime. The officer testified that, after reviewing the statement of charges and an “offense report” he had prepared in connection with the case, he had no independent recollection of Jones or the arrest. The officer testified that he had looked for, but could not find, the folder from the Baltimore Police Department for Jones’s case.
The circuit court granted the coram nobis petition. The State appealed, and the Court of Special Appeals reversed, holding that the doctrine of laches barred the petition. The Court of Appeals subsequently granted Jones’s cert petition.
A convicted petitioner is entitled to coram nobis relief if: (1) the petitioner challenges a conviction based on “constitutional, jurisdictional[,] or fundamental” grounds, whether factual or legal; (2) the petitioner rebuts the presumption of regularity that attaches to the criminal case; (3) the petitioner faces “significant collateral consequences” from the conviction; (4) the issue as to the alleged error has not been waived or finally litigated in a prior proceeding, absent intervening changes in the applicable law; and (5) the petitioner is not entitled to another statutory or common law remedy (for example, the petitioner cannot be incarcerated in a State prison or on parole or probation, as the petitioner likely could then petition for post-conviction relief). Jones, Slip Op. at 11 (citations omitted). As noted above, in his coram nobis petition, Jones asserted as one of his grounds of relief his claim that his guilty plea in 1999 was involuntary. An involuntary guilty plea can provide a basis for a meritorious coram nobis petition. See Skok v. State, 361 Md. 52, 70 (2000).
The doctrine of laches, which is both an affirmative and equitable defense, applies when there is an “unreasonable delay” in the assertion of a party’s rights and that delay results in prejudice to the opposing party. The Court of Appeals had never previously held that the State can assert laches as a defense to a coram nobis petition, though Jones conceded that, as a general matter, it could. In any case, in its unanimous opinion written by Judge Watts, the Court of Appeals stated: “Lest there be any doubt, … the doctrine of laches may bar the right to seek coram nobis relief.” Jones, Slip Op. at 17. The Court then considered whether Jones unreasonably delayed filing his coram nobis petition.
The Court first ascertained the length of the delay and then decided whether the delay was unreasonable. Regarding the length of the delay, the Court pinpointed the date when Jones’s coram nobis claim became ripe, i.e., the earliest time that Jones was able to bring his claim. The Court held that Jones’s coram nobis claim became ripe – and the period of delay therefore began – when he knew or should have known of the facts underlying the alleged error. In this case, the Court said, that was on the day of his guilty-plea proceeding in 1999. See id. at 18.
The Court reasoned that starting the delay clock when an individual knew or should have known of the facts concerning the alleged error “furthers laches’s purpose of protecting against stale claims.” Id. at 19 (internal quotation marks and citation omitted). It also “furthers the public’s interests in accurately and promptly resolving allegations of error and maintaining the finality of convictions.” Id. The Court additionally explained that, because laches is an equitable remedy, “it is only fair to require a petitioner to bring an alleged error to the trial court’s attention without unreasonably delaying after the time at which the petitioner knew or should have known of the facts underlying the alleged error.” Id. at 21. “To hold otherwise would encourage the inequitable result of allowing a petitioner to refrain from challenging an alleged error until doing so suits the petitioner’s interests of avoiding a harsher penalty for having committed a new offense.” Id.
In the Court of Appeals, Jones’s counsel argued that Jones lacked an incentive to challenge his guilty plea at the time he entered it because he received a relatively light sentence. The Court had trouble with this explanation, reasoning that if Jones’s plea was not voluntary, he had to have known that on the day of the plea, and he should have called a timeout then and there so that the issue could be addressed. Instead, Jones did not challenge his guilty plea until after he had served his sentence (i.e., gotten the benefit of the plea agreement), served a sentence for violating probation, and was, 13 years later and in part because of his 1999 conviction, subject to an enhanced federal sentence for another crime.
The Court explained that it would be absurd to essentially reward Jones for committing a new crime by allowing him to now, 13 years later, seek to invalidate his bargained-for plea agreement by contending that he did not understand the elements of the offense to which he pled guilty. Id. at 21-22. Moreover, the Court’s view was that Jones did have an incentive to challenge his conviction on voluntariness grounds, especially after violating the order of probation in 2005, when he was sentenced to three years of imprisonment. His was not a “light” sentence, and it should not have taken the prospect of being sentenced as a federal “armed career criminal” for Jones to complain about the alleged involuntariness of his 1999 guilty plea. Id.
The Court emphasized that every case where laches is asserted must be evaluated in light of its particular circumstances. See id. at 13. Thus, in theory, a petitioner may be able to rebut the State’s contention of laches by establishing that he did not have sufficient notice of an alleged error until some date after his guilty plea; an obvious example would be a subsequent change in constitutional law after the petitioner has served his sentence. But where, as in Jones’s case, a court finds that the error was or should have been apparent to the petitioner at the time of the guilty plea, the clock starts ticking right then and there for purposes of ascertaining the length of delay.
The Court concluded that the length of delay in Jones’s case – 13 years between the date of his guilty plea and the filing of his coram nobis petition – was unreasonable. The Court again noted that the violation of probation, resulting in Jones serving three years of imprisonment, should have incentivized him to challenge his conviction. In addition, the Court relied on the “reason” for the coram nobis petition, which was that Jones had committed another crime. Id. at 32-33. Having determined that Jones unreasonably delayed filing his coram nobis petition, the Court turned to the question of prejudice.
The Court first held that, for purposes of determining whether laches bars coram nobis relief, the prejudice inquiry does not solely involve the State’s ability to defend against the petition but also its ability to re-prosecute the case. Further, to establish prejudice, the State need not prove that the delay makes it impossible to re-prosecute a petitioner; rather, the State must prove simply that the delay places it “in a less favorable position” for purposes of re-prosecution. Id. at 36. In this case, the Court held, the State met that burden with the officer’s testimony that he had no independent recollection of Jones and that he had looked for, but could not find, the Baltimore Police Department’s folder for Jones’s case. Id. at 37.
It is difficult to imagine any case where, with the passage of more than a few months of time, the State won’t be able to show that it is in a “less favorable position” for purposes of re-prosecution.
So, how will Jones affect coram nobis practice and, more generally, criminal practice in Maryland courts? The State will likely interpose a defense of laches in almost every coram nobis action where there has been a more than minimal delay in bringing the claim after the time when the petitioner knew or should have known about the facts underlying it.
It remains to be seen how warm the courts will be to this. Will delays of less than three years be considered unreasonable? Two years? One year?
Where the motivation to file a coram nobis petition is not to avoid a sentencing enhancement based on the prior conviction, perhaps the courts will be less inclined to accept the State’s laches argument. But in cases like Jones – where the petitioner files a coram nobis petition several years after the fact in an attempt to stave off a sentencing enhancement – it seems very likely that the State’s laches argument will succeed. More generally, the subtext of Jones seems to be a warning to defense counsel and defendants themselves that they should not ignore problems during the plea that: (1) they think are not crucial to the sentence the defendant will receive; and (2) they think might create a safety valve for the defendant to exploit many years later when facing a sentencing enhancement based on the prior conviction.
I doubt that most defense counsel and defendants give active thought at the time of a guilty plea to what might happen many years in the future, and therefore purposely fail to object to an error in an attempt to create a bomb the defendant can detonate if necessary at some point later on. Rather, it seems to me the more realistic and common scenario is that a defendant has been in pretrial detention for many months, and then his defense attorney tells him that, if he pleads guilty that day, he’ll get a sentence equivalent to time served or something close to that. At that point, the defendant may pay little attention to what actually gets said at the guilty-plea proceeding, provided that defense counsel does not signal that the predicted or agreed-upon outcome is in jeopardy.
As for a busy defense attorney (or prosecutor or judge for that matter), an ambiguity such as the one that crept into Jones’s guilty-plea proceeding may be easy to miss. To the extent defense counsel has noticed such an ambiguity or an error that, if clarified or corrected, was not going to have a material effect on the overall disposition, the path of least resistance might have been not to raise the issue — but that, in most cases, probably had nothing to do with a hypothetical future coram nobis petition. In any event, the Court’s message in Jones to defense counsel and defendants is clear: If you do notice an error during the guilty-plea proceeding, don’t think that if you say nothing you’ll be able to get the conviction overturned later with coram nobis.