Opinion
No. 1356
02-22-2017
ALEKSEY CHUMAK v. STATE OF MARYLAND
UNREPORTED
Wright, Arthur, Reed, JJ. Opinion by Reed, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
On September 21, 2006, Aleksey Chumak, appellant, entered an Alford plea in the Circuit Court for Charles County and was convicted of first-degree assault. At his sentencing hearing four months later, appellant was sentenced to five years' incarceration, with all but six months suspended, and four years' probation. On January 23, 2014, appellant filed the underlying Petition for Writ of Error Coram Nobis, which, after some procedural hiccups, was denied a year-and-a-half later on June 4, 2015. Appellant noted timely appeal, and presents three questions for our review, which we have combined into one:
See North Carolina v. Alford, 400 U.S. 25 (1970). The "functional equivalent of a guilty plea," an Alford plea is "a specialized type of guilty plea where the defendant, although pleading guilty, continues to deny his or her guilt, but enters the plea to avoid the threat of greater punishment." Ward v. State, 83 Md. App. 474, 478-80 (1990).
Did the circuit court err in denying appellant's Petition for Writ of Error Coram Nobis?For the following reasons, we answer in the negative, and affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying appellant's arrest aren't crucial to our holding here, but because he challenges the "factual basis" for his Alford plea, we briefly summarize the statement of facts as presented in his brief.
On June 4, 2006, a party was thrown at appellant's parents' house in Charles County, Maryland. At some point that evening, appellant "observed a dispute between two individuals who had not been invited to the party," and approached them to "ascertain the extent of the argument." After one of the disputants accused appellant of "grabb[ing] his female companion," another individual pushed appellant, resulting in a fight. Both sides said the fight then began to escalate, but the parties disagree on the manner in which it did.
At the sentencing hearing, the responding officer told the court that witnesses at the scene described to her that after appellant pushed the individual back, appellant pulled a silver handgun from his waistband and fired "[a] couple shots . . . into the air." The officer was told that appellant then struck the individual in the face with the gun, in between his nose and his upper lip. Witnesses also told the officer that appellant then pointed the gun in the direction of another individual, yelled he would "kill every m---erf---er here," and fired two more shots near that individual's head.
Appellant's "version," as he puts it, is that at that point, the handgun was inside his parents' house, not in his possession. Rather, he explains that after the fight concluded, "two cars arrived and approximately 10-15 people exited from the cars," whereupon appellant was "struck with a brick" and attacked by the cars' occupants. "In the meantime," appellant's parents returned, and "the mother was attacked by one of the car occupants." According to appellant, he then ran into the house, retrieved the gun, and fired two shots into the air in an effort to disperse the crowd.
The police soon reported to appellants' house, and, after taking witnesses' accounts, appellant was arrested and charged with, inter alia, first-degree assault. On September 21, 2006, appellant entered his Alford plea to one count of first-degree assault in exchange for the dismissal of the other charges stemming from the same incident. After the State explained the nature of the agreement, the following colloquy took place:
[Defense Counsel]: That's correct, Your Honor. And all the parties have signed off on the plea agreement.
Is that correct, Mr. Chumak?
[Appellant]: Yes, sir.
THE COURT: Okay. Is your full name Aleksey Chumak?
[Appellant]: Yes, sir.
* * *
Then, after further discussing the nature of the plea agreement, and after ensuring appellant understood how a trial would have worked and that he was foregoing any right to one, the following colloquy took place:
THE COURT: Have you had any drugs, medication, or alcohol in the past two days?
[Appellant]: No, sir.
THE COURT: Do you read, write, and understand the English language?
[Appellant]: Yes, sir.
THE COURT: How far have you gone in school?
[Appellant]: To college.
THE COURT: Have you discussed this case with your attorney?
[Appellant]: Yes, sir.
THE COURT: Are you satisfied with his services, up to this point?
[Appellant]: Yes, sir.
THE COURT: Now, I'm told you want to enter a plea of guilty to Count 3, which is first[-]degree assault. Is that correct?
[Appellant]: Yes, sir.
THE COURT: State, what evidence would you produce if the case went to trial?
[The State]: Your Honor, had this matter gone to trial, some of the State's evidence would have been that on June 4th of this year, there was a party at a residence in Charles County, Maryland. A [sic] argument broke out at that party, and during the course of the argument an individual identified as the [appellant] pulled out a silver handgun, fired a number of shots into the air, and then pointed the gun in the general direction of [one of the disputants], [and] fired two more shots. Police officers responded to the scene. The [appellant] admitted to having the gun and to, at least, firing shots into the air. And shell casings were recovered at the scene.
All events occurred in Charles County, Maryland.
[Defense Counsel]: Your honor, we take no exception.
THE COURT: Now, do you understand the maximum penalty is up to 25 years [sic] incarceration?
[Appellant]: Yes, sir.
THE COURT: Aside from the agreement previously mentioned, has anyone else promised you anything or threatened you in any way to cause you to plead guilty?
[Appellant]: No, sir.
THE COURT: And are you pleading guilty because you're aware of the nature of the government's evidence and expect that if you went to trial you'd be convicted of the offense you're pleading guilty to, or something more severe?
[Appellant]: Yes, sir.
THE COURT: And do you understand if we accept your plea, you're waving you right to have a direct appeal to the Court of Special Appeals? The only
way the case could be reviewed would be if the Court of Special Appeals granted an application for leave to appeal, and that you'd be limited to the issues of whether the court had jurisdiction; whether the sentence was legal; whether the plea was knowingly and intelligently made; and whether counsel was competent. Do you understand that?
[Appellant]: Yes, sir.
THE COURT: I make a finding there's a factual basis for the plea, and it was voluntarily and understandingly made.
Thereafter, per the plea agreement, the State entered a nolle pros to the remaining counts, and the circuit court postponed sentencing, pending a pre-sentence investigation.* * *
Approximately four months later, the circuit court held a two-day sentencing hearing on January 26 and 31, 2007. Apparently, "without [a]ppellant's knowledge and acquiesce," the attorney that represented appellant at the plea hearing sent a second attorney to represent appellant in the sentencing hearing, with whom appellant "had never communicated with . . . prior to the time of sentencing," and only spoke to for "approximately 5-10 minutes" prior to the hearing. After two days of testimony, appellant was sentenced, within the terms of the plea agreement, to five years' imprisonment, with all but six months suspended, and four years of probation.
While appellant makes much of his original counsel's disbarment, see 410 Md. 621 (2009), for reasons explained infra, it is of no moment to our decision.
On February 1, 2007, appellant's same counsel filed a Motion for Reconsideration of Sentence and asked that the motion be held in abeyance until further supplemented. On March 16, 2007, a Supplemental Motion for Reconsideration of Sentence was filed by the same counsel again, asking that the circuit court hold the matter in abeyance "until such time as future supplements be provided," which, as it turned out was May 8, 2007, where another supplemental motion was filed, this time adding appellant's mother's statement for the court's consideration. The circuit court eventually ruled on the motions, but the only relief that was granted by the court in response to those pleadings was appellant's release to home detention.
Over four years later, on December 7, 2011, appellant, this time represented by new counsel, filed a new Motion for Reconsider Sentence, asking the court to grant a probation before judgment. Another year after that, on December 18, 2012, appellant filed another Motion for Reconsideration of Sentence and for Probation Before Judgment, again represented by different counsel, so that he may "qualify for Federal Government Contracts."
The underlying Petition for Writ of Error Coram Nobis was filed by present counsel on January 23, 2014. The petition alleged that appellant's Alford plea was defective due to the same ineffective assistance of counsel and trial court error claims as he brings now. On May 2, 2014, the State filed a response, also making the same claims that it brings before us now; namely, (1) the claims were waived, (2) the petition was barred by laches, (3) the petition failed to plead significant collateral consequences from the conviction, and (4) the claims asserted in the petition were meritless.
After some procedural complications not relevant here, a hearing on the coram nobis petition was held on June 4, 2015, with appellant being the only witness to testify. He testified that he owned a heating and air conditioning business, which had two employees and made around $100,000 in gross revenue a year. According to appellant, he was finding it difficult to acquire residential customers due to increased competition, and he was unable to acquire any federal government contracts, like those he had at his previous job, because of his felony conviction.
He further testified that his lawyer negotiated the plea agreement with the State's Attorney's Office and advised him to agree to the deal in order to avoid the possibility of being found guilty at trial of all charged offenses and being exposed to a more severe sentence. Appellant claimed that he did not know that he was pleading guilty to a felony until after he was sentenced, and that had he been informed of that fact beforehand, he would not have pleaded guilty.
In closing, appellant argued that his plea was defective under Md. Rule 4-242 because "[l]ooking at the transcripts of the plea hearing . . ., not once [was] the word 'felony' mentioned, nor were the elements of nature of the charge of first[-]degree assault explained to" appellant. Citing Skok v. State, 361 Md. 52 (2000), he argued that the sentencing court was still unsure as to "what really happened on June the 4th of 2006 and that there were two versions of the facts," and given that, the sentencing court erred in accepting the plea. He further argued that he had received ineffective assistance of counsel, and that, "if all was done correctly, the [appellant] would have gone to trial, because there was insufficient evidence to prove first[-]degree assault."
After hearing both arguments, the court denied the coram nobis petition on three grounds: (1) appellant failed to demonstrate that he was facing a significant collateral consequence from his conviction; (2) appellant's claims were waived; (3) the plea was knowingly and voluntarily entered into, with effective assistance of counsel. The court filed an order denying the Petition for Writ of Error Coram Nobis on September 22, 2015, and this timely appeal followed.
DISCUSSION
A. Parties' Contentions
While appellant presented three questions for our review, they all pertain to the main thrust of his argument: that the court erred in denying his coram nobis petition. He first argues that the trial court erred in determining that the Alford plea was knowingly and voluntarily made, because the trial court failed to ascertain, on the record, that appellant understood the "elements [or] nature of the charge of first-degree assault," or that appellant had gone over the charges with his attorney beforehand. He then goes on to argue that, on the basis of the allegedly deficient colloquy, combined with "facts that are inconsistent and conflicting . . ., it can be concluded that there is no factual basis" for appellant's Alford plea. His final argument is that he received ineffective assistance at the plea hearing for essentially three reasons: (1) his counsel at the plea hearing failed to explain the nature and elements of the charges against him, (2) that same attorney was disbarred and sentenced to prison time for "mail and wire fraud," and (3) he never retained the counsel that represented him at sentencing and his "[s]ubstitute counsel could not properly advise the [a]ppellant of his legal rights as the attorney was without knowledge as to the facts, circumstances[,] and issues of the case, nor had he ever read or executed the written plea agreement." In sum, appellant surmises that if he "was properly informed of all of the above, he would have plead [sic] not guilty and raised a self[-]defense issue at trial thereby reaching a different and more favorable result."
In response, the State argues that appellant failed to establish a basis for coram nobis relief because the "inability to obtain federal contracts is not the type of significant collateral consequence that can be cured by coram nobis relief." The State contends the petition was barred by laches, because appellant failed to move to withdraw his plea, file for leave to appeal his plea, or seek post-conviction relief while in custody, all of which the State contends would have placed the State on notice following the 2007 plea. The State also asserts that his plea was entered into knowingly and voluntarily, and that appellant further failed to establish ineffective assistance of counsel.
B. Standard of Review
"A petition for writ of error coram nobis is 'an equitable action originating in common law,' and not a belated direct appeal, a principle which we cannot over-emphasize." Coleman v. State, 219 Md. App. 339, 354 (2014) (citation omitted). Instead, it is "an independent civil action" that exists to "obtain relief . . . in cases where [certain] defenses, if known at the time, would have prevented a judgment, but which through no fault of the defendant were not known when the judgment was entered." Pitt v. State, 144 Md. App. 49, 59-60 (2002) (citation omitted). As the Court explained the action:
Coram nobis relief is, however, "extraordinary," [Skok, 36 Md.] at 72, 760 A.2d 647 (quoting United States v. Morgan, 346 U.S. 502, 512, 74 S. Ct. 247, 98 L. Ed. 248 (1954)), and therefore limited to "compelling" circumstances rebutting the "presumption of regularity" that ordinarily "attaches to the criminal case." Id. at 72, 78, 760 A.2d 647. The burden of demonstrating such circumstances is on the coram nobis petitioner. Id.Smith v. State, 219 Md. App. 289, 292 (2014).
Further, "we will not disturb the factual findings of the post-conviction court unless they are clearly erroneous." Arrington v. State, 411 Md. 524, 551 (2009) (quoting Wilson v. State, 363 Md. 333, 348 (2001)). Under the "clearly erroneous standard, we make an independent determination of relevant law and its application to the facts." Arrington, 411 Md. at 551 (quoting State v. Adams, 406 Md. 240, 255 (2008), overruled on other grounds by Unger v. State, 427 Md. 383 (2012)).
C. Analysis
Quite recently, the Court of Appeals aptly summarized the process for coram nobis relief in a way which, as we will explain, is dispositive of this case:
A convicted petitioner is entitled to relief through the common law writ of error coram nobis if and only 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 "fac[es] 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). Rivera v. State, 409 Md. 176, 191 n.6, 973 A.2d 218, 227 n.6 (2009) (quoting Skok v. State, 361 Md. 52, 78-80, 760 A.2d 647, 661-62 (2000)). One possible ground for a coram nobis petition is an allegedly involuntary guilty plea. See Skok, 361 Md. at 70, 760 A.2d at 657.Jones v. State, 445 Md. 324, 338 (2015) (emphasis added).
In our view, the Court's use of the phrase "if and only if," combined with the use of the conjunctive "and" in listing the elements, clearly demonstrates that a petitioner—at a minimum—must prove to the coram nobis court the existence of all five elements to meet the threshold to be eligible for relief under the doctrine. In other words, the absence of one element is akin to failure to state a claim, and renders the petition "fatally flawed." Smith, 219 Md. App. at 293. Unfortunately for appellant, the coram nobis court found that he failed to establish that he was suffering sufficient collateral consequences from his conviction—and we agree.
i. Collateral Consequences
The "significant collateral consequences" element generally traces back to the benchmark case of Skok v. State, where the Court of Appeals expanded the common law writ of error coram nobis in Maryland. In Skok, a native of Italy, and lawful permanent resident of the United States for 12 years, filed a coram nobis petition after being faced with deportation proceedings resulting from pleas in two separate drug possession cases. Skok, 361 Md. at 55-56. After examining the history of the writ, the Court explained that, "[a]long with the vast majority of appellate courts which have considered the matter, we believe that the [broadened] scope of coram nobis, as delineated in United States v. Morgan, [346 U.S. 502 (1954),] is justified by contemporary conditions and public policy." Skok, 361 Md. at 77 (emphasis added).
With regard to the "contemporary conditions," the Court illustrated the common situation in which a defendant declines to appeal "because of a relatively light sanction," even if the conviction involved an error of a "constitutional or fundamental nature," only to later learn of a "substantial collateral consequence of the conviction." Id. at 77. Often, by that time, it was either: (1) be too late to appeal, or (2) when the defendant was no longer incarcerated or on parole or probation, which meant they were unable to challenge the conviction through a writ of habeas corpus or post-conviction petition. Id.
As to the "public policy" concerns, the Court of Appeals noted that "serious collateral consequences of criminal convictions have become much more frequent in recent years." Id. This, the Court explained, was probably due to two reasons:
The past few decades have seen a proliferation of recidivist statutes throughout the country. In addition, apparently because of recent changes in federal immigration laws, regulations, and administration, there has been a plethora of deportation proceedings against non-citizens based on relatively minor criminal convictions.Skok, 361 Md. at 77 (emphasis added). The Court went on to say that,
[i]n light of these serious collateral consequences, there should be a remedy for a convicted person who is not incarcerated and not on parole or probation, who is suddenly faced with a significant collateral consequence of his or her conviction, and who can legitimately challenge the conviction on constitutional or fundamental grounds. Such person should be able to file a motion for coram nobis relief regardless of whether the alleged infirmity in the conviction is considered an error of fact or an error of law.Id. at 78 (emphasis added). Accordingly, even a cursory glance of Maryland coram nobis caselaw post-Skok reveals that the only collateral consequences that either this Court or the Court of Appeals has considered are enhanced subsequent sentences and exposure to federal removal proceedings.
See, e.g., Jones, 445 Md. at 332 (enhanced sentences); Coleman, 219 Md. App. at 348 (same); Graves v. State, 215 Md. App. 339, 345 (2013) (same); State v. Castellon-Gutierrez, 198 Md. App. 633, 637 (2011) (same); Gross v. State, 186 Md. App. 320, 323 (2009) (same); Abrams v. State, 176 Md. App. 600, 606 (2007) (same); Parker v. State, 160 Md. App. 672, 687-88 (2005) (same); Pitt, 144 Md. App. at 52 (same); State v. Hicks, 139 Md. App. 1, 5 (2001) (same).
See, e.g., Smith, 443 Md. at 584-85 (removal proceedings); Miller v. State, 435 Md. 174, 179-80 (2013) (same); Rivera v. State, 409 Md. 176, 193 (2009) (same); Guardado v. State, 218 Md. App. 640, 642-43 (2014) (same).
Here, in his brief, appellant proffers his collateral consequences as follows:
In the instant case, [a]ppellant was never informed, in open court and/or by his attorneys . . . regarding the significant collateral consequences the [Alford] plea would bring to his business and livelihood. Nor was the [appellant] advised by the court or his attorneys regarding the nature and components of first-degree assault and the fact that he was presumed innocent until proven guilty. Specifically, [a]ppellant is an air conditioning and heating technician by trade wherein he produces most of his income from federal government contracts. According to federal government policy the [a]ppellant is prevented by obtaining such contracts due to incurring a felony conviction and is unable to obtain and/or retain a security clearance. This policy has serious consequences to the [a]ppellant, his business, and livelihood.Appellant is unable to cite a single case in which a petitioner was granted coram nobis relief on the basis of anything other than being subjected to enhanced penalties or deportation proceedings, and logically so. The obvious difference between appellant's alleged consequences and the aforementioned established collateral consequences is the fact that the former exists entirely by virtue of a petitioner's choice or preference; whereas in the latter, a petitioner has practically no say in the matter, being at the mercy of the criminal justice system. Were we to accept appellant's method, we fail to see how a court would be able to differentiate between "consequences" and "significant consequences." However, even if, arguendo, we were to accept his alleged "collateral consequences" as applicable here, his petition would still fail, for three reasons.
First, as this Court has explained before, "[t]he collateral consequences must be actual, not merely theoretical." Graves, 215 Md. App. at 353 (citing Parker, 160 Md. App. at 687-89). While appellant does not squarely address the issue of collateral consequences in his brief, he argued before the coram nobis court that it was mainly the inability to obtain federal contracts, but at oral arguments maintained that his proffered consequence was the loss of his security clearance itself. Procedural issues aside, our opinion would be the same, no matter which consequence he pursued. Appellant (1) provided the coram nobis court with no evidence that he had even attempted to obtain such a contract (or that it was his conviction alone that was preventing him from securing one), and (2) admitted that he "didn't even walk through the door" to try to obtain one because he knew "there was no point" in trying to without a security clearance. Either way, the alleged harm is by definition 'theoretical,' and we do not believe that either is sufficient for the purposes of a coram nobis petition.
See Md. Rule 8-522(f) ("The Court may decline to hear oral argument on any matter not presented in the briefs."). While appellant mentions in his brief that "[a]ccording to federal government policy the appellant is unable to obtain and/or retain a security clearance," it is only in the context of explaining that his inability to obtain federal contracts was the primary collateral consequence of his plea.
Second, no court has held that difficulty in finding employment—let alone better employment—constitutes significant consequences entitling a petitioner to coram nobis relief. See, e.g., Parker, 160 Md. App. at 687 ("The Supreme Court has expressly recognized that it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'" (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)). See also U.S. v. Bush, 888 F.2d 1145, 1149 (7th Cir. 1989) ("Difficulty in obtaining a desirable job is not a legal disability. When taking a guilty plea, the judge does not advise the defendant that among the consequences of the plea is reduced esteem in the eyes of the community, with effects on one's career.") And, while there was some debate as to how much appellant makes at his company and how much better off he would be with a federal contract, his income is of no moment to our decision. Simply put, the potential adverse economic effects resulting from a conviction is not something a trial judge needs to concern himself with.
And finally, even if we were to assume that appellant had "met the prerequisites for coram nobis relief, we are not aware of any Maryland decision mandating that relief be granted in the absence of 'circumstances compelling such action to achieve justice.'" Coleman, 219 Md. App. at 354 (footnote omitted) (quoting Morgan, 346 U.S. at 511). Looking at the totality of the circumstances (as we do, infra), we are unconvinced that the circumstances of this case would "compel[] such action to achieve justice"—at least as contemplated by the spirit of the writ of error coram nobis.
ii. Voluntariness and Assistance of Counsel
We note briefly that, even if, arguendo, appellant were able to demonstrate adequate collateral consequences, our opinion would not change.
For one thing, we are unconvinced that he did not understand the nature of the charge to which he was pleading guilty. At oral arguments, appellant's counsel repeatedly urged us to look at the "totality of the circumstances" of appellant's plea, per the Court of Appeals' decision in State v. Priet, 289 Md. 267 (1981), to determine if it was in fact voluntary. In our opinion, it was. At the plea hearing, appellant (1) had at least a partial college education; (2) acknowledged he had discussed the case with his attorney; (3) acknowledged he was satisfied with his services; (4) acknowledged he wanted to "enter of plea of guilty to Count 3, which is first[-]degree assault"; (5) listened to the State's proffered evidence, to which said attorney noted no exceptions; (6) acknowledged that he was facing a maximum of up to 25 years' incarceration; (7) acknowledged that he was "aware of the nature of the government's evidence" and expected that if he went to trial he would be convicted of the offense he pleaded guilty to, or something more severe; and (8) signed the plea agreement containing the terms of the plea, along with both attorneys and the presiding judge. Based on the record before us, we are not persuaded that appellant did not enter into the plea agreement knowingly and voluntarily.
Nor are we convinced that appellant receive did not effective assistance of counsel. While much of appellant's argument is spent casting aspersions on the character of his original counsel—be it warranted or not—he provides no evidence that he was directly affected by any of that (now-disbarred) counsel's misdeeds, let alone how those misdeeds would have affected the outcome of this case. And, while the sentencing court ideally would have addressed the fact that he was represented by different counsel at the time of sentencing on the record, we are equally unpersuaded that he was provided ineffective assistance by that counsel—indeed, the transcript reflects that his sentencing counsel had a robust understanding of the case, as evidenced by his thorough defense of appellant over two days of hearings, five days apart. In any event, appellant certainly falls short of establishing prejudice, as he provides no actual evidence that he would not have accepted the very beneficial plea he received (which was far under the sentencing guidelines, let alone the maximum penalty) and would have insisted on going to trial.
We are willing to accept appellant's allegations as true; that his original counsel was disbarred after being investigated for wire and mail fraud—which, at the risk of stating the obvious, are crimes that are indisputably deplorable and worthy of disbarment. What we are unwilling to do, however, is inferentially connect the dots between those acts and his representation at the plea hearing—something appellant noticeably chose not to explicitly do—in the absence of any direct, or even circumstantial, evidence that such a connection existed. --------
CONCLUSION
For the above stated reasons, we primarily hold the circuit court did not err in denying appellant's Petition for Writ of Error Coram Nobis because appellant failed to allege sufficient collateral consequences of his conviction, and the judgment is affirmed.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.