Holmes v. State
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Darrell Holmes A/K/A Lendro Thomas v. State of Maryland, No. 140, September Term, 2006. CRIMIN AL LAW WRIT OF ERR OR CO RAM NOBIS : Petitioner, Darrell Holmes a/k/a Lendro Thomas, pled guilty to robbery with a deadly weapon at a hearing in the Circuit Court for Baltimore City in 1992, during which the court informed him that he had the right to file an applicatio n for leave to appeal his conviction and sentence to the Court o f Special A ppeals. Th omas did not file such an application for leave to appeal. In 2004, Thomas was convicted of various drug and weapon offenses in the United States District Court for the District of Maryland. Because of his 1992 conviction for robbery with a deadly weapon, he was classified as a career offender under the Federal Sentencing Guidelines. In an effort to avoid the enhanced recidivist sentencing guideline, Thomas filed, in the Circuit Court for Baltimore City, a Petition for Writ of Error Coram Nobis challenging the validity of his 1992 conviction and sentence. After conducting three hearin gs, the Circu it Court for Baltim ore City conc luded that Thomas plea was not voluntary and intelligent because he was not informed of the nature of the charge to w hich he w as pleadi ng guilty, but denied his application because he had not rebutted the statutory presumption under Section 7-106 (c) o f the Crim inal Proced ure Article that he intelligen tly and kno wingly wa ived his right to challeng e his conv iction in a writ of error coram nobis proceeding by not filing an application for leave to appeal his original conviction and sentence. The Court of Special Appea ls disagreed that Thomas guilty plea wa s constitutiona lly infirm, but agre ed in dicta that Thomas waived his right to challenge whether his guilty plea was intelligent and knowing because he failed to raise the allegation of error in an application for leave to appeal his original conviction. The Court of Appeals affirmed, holding that if an individual who pleads guilty, having been informed of his right to file an application for leave to appeal from his conviction and sentence, does not file such an application for leave to appea l, a rebuttable presumption arises that he has waived the right to challenge his convictio n in a subsequent coram nobis proceeding. The Court determined that because Thomas did not rebut the presumption of waiver by dem onstrating that his failure to file a n application for leave to appeal was not intelligent and knowing, and because Thomas did not demonstrate special circumstances to excuse his failure to file a n application for leave to appeal, his rig ht to challenge his conviction and sentence through a writ of error coram nobis petition was waived. IN THE COURT OF APPEALS OF MARYLAND No. 140 September Term, 2006 DARRELL HOLMES A/K/A LENDRO THOMAS v. STATE OF MARYLAND Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned), JJ. Opinion by Battaglia, J. Bell, C.J., Ra ker, and G reene, JJ., Diss ent. Filed: September 21, 2007 *Cathell, J., now retired, participated in the hearing and conf erence of this case w hile an active membe r of this Co urt; after being recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The case sub judice presents this Court with the task of determining whether an individual who enters a guilty plea but who does not file an application for leave to appeal challenging the resulting conviction and sentence waives his right to sub sequently challenge his conviction and sentence through a petition for a writ of error coram nobis when the individual is not incarcerated or on parole or probation. We shall hold that a presumption that an individual waives his right to file a petition for a writ of error coram nobis arises if the individual, after entering a guilty plea and having been informed of his right to file an application for leave to appeal, does not file an application for leave to appeal. Because the petitioner in the presen t case did no t rebut the pre sumption of waive r, nor demo nstrate special circumsta nces to excuse his failure to file an application for leave to appeal, we shall affirm the judgment of the Court of Special Appeals. I. Introduction In 1992, petitioner, Darrell Holmes a/k/a Lendro Thomas, 1 was charged w ith robbery with a deadly we apon, assa ult with inten t to comm it robber y, carrying a con cealed dea dly weapon, and openly carrying a deadly weapon with the intent to injure . The docket entries reflect that Thomas subsequently pled guilty to robbery with a deadly weapon at a hearing in the Circ uit Cou rt for B altimore City, during which the court questioned Thomas and determined his name, his residence, his date of birth and age, that he was not under the 1 Petitioner stated in his brief before this Court that his correc t name is Lendro Thomas although at his guilty plea proceeding in 1992, he testified that his correct name was Leadio Thomas. As Petitioner s counsel acknowledged at the coram nobis hearing on December 30, 2004, Petitioner was convicted in 1992 under the name of Darrell Holm es. In order to avoid further confusion, we will refer to Petitioner by the surname Thomas. influence of alcohol or drugs, that he had not been a patient in a mental institution, and that he under stood the term s of his plea agreeme nt:2 [COUR T]: All right. Mr. Holmes, now, or Thomas. [STATE]: It s Thomas. [COURT]: Is it a plea? [STATE]: Yes. [COU NSEL F OR TH OMA S]: It is, Your Honor. [COURT]: What is the plea? [STAT E]: Three years from that same date, all suspended but one year. [COU RT]: All right. Three sus pend all but one year. [COURT CL ERK]: Probation? [STAT E]: Probation to be determined by the wisdom of the court, which is extensive. [COU RT]: All right. He has got two years left. It will be two years of prob ation. All righ t. [COURT CL ERK]: Mr. Holmes, your correct name? [THOM AS]: Leadio Thomas. [COURT CL ERK]: Who? 2 Thomas pled guilty during a gro up guilty plea hear ing. R odney Moody, Jacqueline Tooks, Ronald B ennett, and D elroy Diggs a lso entered g uilty pleas; none of them is a party to this app eal. 2 [THOM AS]: Leadio Thomas. [COU RT CL ERK ]: How d o you spell that? [THOMAS]: L-E-A-D-I-O. [COURT CL ERK]: That s your real name? [THOMA S]: Yes [COUR T CLERK ]: Address? [THO MAS ]: 2123 N orth Sma llwood S treet. [COU RT CL ERK ]: Is that a hous e or apartm ent? [THOMA S]: House. [COURT CL ERK]: Zip code? [THOMA S]: 16, 21216. [COURT CL ERK]: Date of birth? [THOMA S]: 12/21/62. [COURT CL ERK]: How old are you? [THOMA S]: Twenty-nine. [COURT CL ERK]: Okay. Thank you. [COUNSEL FOR T HOM AS]: W ould you like m e to qualify them now, Y our Honor? [COURT]: Please. [COUNSEL FOR THOM AS]: Now, I m going to ask you all the same questions. If you don t understand the question, raise your hand. But everybody has to answer so the stenographer can take 3 dow n the answ ers. O kay? Now is anyone here under the influence of any alcohol or any drug s tod ay? [THOMA S]: No. [COUNSEL FOR THOM AS]: Has anybody ever been a patient in a menta l institution or un der the care of a psychiatrist? [THOMA S]: No. [COUNSEL FOR THOMA S]: Now, doe s everyone here understand the terms of his and her plea bargain? That is, what the sentence is going to be. Does anybody have any questions about it? [THOMA S]: No. [COUNSEL FOR THOM AS]: Now, does anybody else have any other questions? [THOMA S]: No. Thomas counsel continued the colloquy, informing Thomas that by entering a guilty plea, he would be waiving his right to trial, his right to cross-examine the witnesses against him, and his right against self-incrimination, to which Thomas indicated his understanding: [COUNSEL FOR T HOM AS]: A ll right. Now, you understand that when you have a plea bargain s uch as we all have here toda y, it means there will not be a trial in the case . In other words, you will not go to trial. The witn esses will no t come into the courtroom. You will not cross-examine any witnesses and we will not produce any of o ur own. What will happen is that the state s attorney will read to the judge a series of facts he feels he could p rove if t here w ere a trial . Does ev erybody unde rstand that? [THOM AS]: Yes. 4 [COUNSEL FOR THOM AS]: Now, if you had wanted to have a trial, you could have had either a ju ry trial or a c ourt trial. A jury trial means that twelve people are selected to hear the evidence, and they decide whether they think you are innocent or guilty. A court trial m eans the ju dge, himself, listens to the evidence, and he decides whether he thinks you are innocent or guilty. And if you had had a trial, regardless of whether you had a jury trial or a court trial, the State would have to prove that you are guilty of these charges beyond a reasonab le doubt before you could be found guilty. Does ev erybody unde rstand that? [THOM AS]: Yes. [COUNSEL FOR THOM AS]: Now, when you plead guilty, you give up a number of rights, including what is called a right against self-incrimination. What that means is nobody can make you be a w itness ag ainst your self in you r own case. But when you plead gu ilty, you give up that rig ht. Does ev erybody unde rstand that? [THOM AS]: Yes. Thomas was also questioned by his counsel regarding whether he understood his appellate right. More particularly, Thomas was informed that by pleading g uilty, he was fo rfeiting his right to a direct appeal from his conviction and sentence (an automatic right of appeal) and that instead, he h ad the right to file an app lication for lea ve to appeal ( permission to take an appeal): [COUNSEL FOR THOM AS]: Now, after you plead guilty, you do not have an a utomatic rig ht of appe al. You can still ask the higher court for permission to take an appeal. If the higher court should gran t that perm issio n, it could only hear an appeal on four grounds. One ground would be whether or not this court had the power to hear this case. The second ground would be whether the sentence given to you by the judge was a legal 5 sentence. The third ground w ould be wheth er you have been adequate ly represented by your attorney. And I want to ask each of you, are you satisfied with the services of your attorney so far? [THOMA S]: Yes [COUNSEL FOR THOM AS]: The final ground would be whether the plea was entered into freely and voluntarily. Now, other than the plea bargain, which you each know, has anything else been offered to you or promised to you? Has anybody threaten ed you or f orce d you to plead g uilty? [THOMA S]: No. [COUNSEL FOR THOM AS]: Is everybody doing so freely and volu ntarily tod ay? [THOM AS]: Yes. *** [COUNSEL FOR THOM AS]: Now, does anybody have any questions about what we are doing here or about your plea arrangem ent? [THOMA S]: No. The court then found th at Th oma s ple a wa s entered knowingly an d voluntarily, heard the state men t of f acts from the S tate s Att orne y, accepted Thomas guilty plea, and sentenced Thomas to three years imprisonment, with all but one year suspended, and two years probation: [COU RT]: I have no questions. On the basis of the advice given and the responses, I find that each und erstands his o r her rights to a full trial and is k nowing ly, willingly and volunta rily relinquishin g those rights and electing to proceed by way of a 6 guilty plea. I find tha t this actio n is b eing take n knowingly, willingly and volu ntarily. All right. I ll hear the statement of facts. [STAT E]: Your honor, as to Mr. Diggs and Mr. Thomas, on the 20th of September, 1992, they were in the 1700 block of West North Avenue where also were Carl Barnes and Dionne Thompson. At that time, Mr. Diggs and Mr. Thomas approached those two people. One of them produced what turned out to be a pellet gun, demanded money, and received $41 from M r. Barne s and re ceived $13 fr om M s. Thompson. The police we re called. Of ficer Philip Sexton co mes along with Officer Anthony Malocky, and they receive a description of the defendants. They canva s the are a. The defendants are arrested. A pellet gun is recovered at the time, Your Honor. It was found to be a pellet gun at the crime lab. The victims are brought up to where the defendants are, and it s a show-up ID . It s a short time and a sho rt dis tanc e aft er the init ial ro bbery. That s the facts as to Mr. Thomas and Mr. Diggs. [COUNSEL FOR THOM AS]: No additions or corrections to the statement of facts, Yo ur Honor. [COU RT]: Well, wait a minute. Let me make a finding on Diggs an d Thom as. I don t think I did yet. [COU NSEL FOR T HOM AS]: N o, you didn t. [COU RT]: All right. The statement of facts read by the State s Attorney forms a sufficient factual basis for acceptance of the guilty pleas as to -- you were calling only one count, the first count, as to both? [STAT E]: Yes, Your H onor. [COU RT]: All righ t. I will accept the guilty pleas of each of the defendants and enter a guilty finding. [COUNSEL FOR THOM AS]: Mr. Thomas, is there anything you would like to say to the judge prior to sentencing? 7 [THOM AS]: No, sir. [COUNSEL FOR THOM AS]: We are ready for sentencing. [COU RT]: As to Mr. Thomas, the sentence is three years, suspend all but one year, two years probation, court costs. [COUNSEL FOR THOM AS]: And also to start on 9/20/92, Your Hon or. [COU RT]: Yes, effective 9/20. In each case, M r. Diggs and M r. Thomas, the beginning portion of the time to be served is 9/20. All right. Thereafter, Thomas counsel again advised Thomas of his right to file an application for leave to appeal h is conviction and that suc h an applic ation must b e filed in w riting and w ithin thirty days: [COUNSEL FOR THOM AS]: Let me advise each of you your rights at this tim e. Gentlemen, you each have your right to ask for permission to make an appeal to the Court of Special Appea ls of Maryland. If you want to ask for that permission, you have to do it in writing w ithin thirty d ays fr om today. Secondly, you each have the right to ask the judge to review your sentence. You have ninety days in which to ask him to review and rec onside r. And, finally, Mr. Thomas, you have the right to ask to have your sentence reviewed by a panel of three judges. They could either leave the sentence the same or reduce it. They could not increase it. If you want to ask for that right, you have to do it within thirty days. Now does everybody understand their rights? [THOM AS]: Yes. Thomas did not file an application for leave to appeal his conv iction to the Court of Special Appea ls of Maryland pursuant to Section 12-302 (e) of the Courts and Judicial Proceedings 8 Article, Maryland Cod e (1974, 1989 R epl. Vol.), 3 and has completed his sentence. In 2004, Thomas was convicted of various drug and weapo n offens es in the United States District Court for the District of Maryland. Because of his 1992 conviction for robbery with a dea dly weapon , he was cla ssified as a career offender under the Federal Sentencing Guidelines.4 Prior to being sentenced in federal court, in an effort to avoid the enhanced recidivist sente ncing guid eline, Thom as filed, in the Circuit Court for Baltimore City, a Petition for Writ of E rror Coram Nobis ch allenging th e validity of his 1992 conviction and sentence. At hearings on Decem ber 30, 2004, Janua ry 26, 2005, and February 24, 2005, Thomas argued that his 1992 guilty plea was neither knowing no r voluntary and therefore that the resulting conviction should be vacated based upon five defects that he alleged occurred during the guilty plea proceeding: (1) Mr. Thomas was given a group plea with four other defenda nts at the same time; (2) Mr. Tho mas wa s never told what the charges against him were; (3) Mr. Thomas was not informed of the maximum penalty he faced; (4) Mr. Thomas was not asked if he wanted to plead guilty ins tead he w as told that was what he was doing; and (5) Mr. Thomas was not told of his right to a sp eedy and pu blic trial. In a written order and mem orandum, Judg e W. Miche l Pierson of the Circuit Co urt for 3 Section 12-302 (e) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1989 R epl. Vo l.) stated: Section 12-301 does not permit an appeal from a final judgment entered following a plea of guilty in a circuit court. Review of such a judgment shall be sough t by applic ation fo r leave to appea l. 4 On May 2, 2005, Thomas was sentenced in his federal case to 204 months imprisonment and thereafter, filed a notice of appe al to the United States Co urt of App eals for the Fourth Circuit; the court affirmed Thomas conviction and sentence. 9 Baltimore City rejected four of Thomas arguments, finding that Thomas did not establish that his counsel s performance was affected b y the group p lea ; that Th omas did not have to be told of the maximum sentence he faced because he acquiesced in the plea agreement and agreed-upon sentence; that the record reflected that Thomas was asked if he was pleading guilty and that he responded affirmatively; and that Thomas was not required to be advised of his right to a speedy and public trial. Judge Pierson d etermined, howe ver, that the record was not sufficient to sho w that Thom as understood the na ture of the charges against him, but denied Thomas petition, concluding that Thomas had not rebutted the presumption that he intelligently and knowingly waived his right to cha llenge his co nviction in a writ of error coram nobis proceeding by not filing an application for leave to appeal his original conviction and sentence: Howeve r, the contention that M r. Thomas was never told what the charges against him were stands on a different footing. Maryland Rule 4-242 (c) specifically requires that: The co urt may accept a plea of guilty only after it determines, upon an examination of the defendant o n the record in open c ourt conducted by the court, the State s Attorney, the attorney for the defenda nt, or any combination thereof, that (1) the defe ndant is pleading volunt arily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. The test for whether the defendant has been made aw are of the n ature of the offense is whether the trial judge, considering the record, could fairly determine that the defendant understood the nature of the cha rges. State v. Priet, 289 Md. 267 , 280[, 424 A.2d 349, 356] (1981 ). The State correctly points out that complian ce with this requirement does not require that the court explain the elements of the charge. A defendant s understanding of the charge may be inferred from the record. As the court stated in Priet, in some 10 cases the elements of the charge may be apparent from the charge itself. However, in this case, now here in the transcript of the guilty plea proceeding supplied to the court is there even any identification of the cha rge to wh ich petitioner is pleading guilty. Therefore, the court do es not believe that the record could support the conclusion that the trial court could make a determination that petitioner understood the nature of the charges against him. The State argue s that petitioner w aived his right to challenge the effectiveness of the guilty plea. The State contends that petitioner waived this right by failing to file an application for leave to appeal or challenge the effectiveness of the plea in any other forum. In support of this proposition, the State cites McElroy v. State, 329 Md. 136, 617 A.2d 1068 (1992). Petitioner argues in response that both Skok [5] and the recent decision of the Court of Special Appeals in Parker v . State, 361 Md. 52[, 760 A.2d 647] (2000), preclude application of the waiver standard employed in McElroy. In Skok, the Court of Appeals held that ordinary concepts of waiver ap ply to coram n obis petitions. It sta ted that: Basic principles of waiver are applicable to issues raised in coram nobis p roceed ings. United States v. Morgan, 346 U.S. [502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 2 48, 257 .]. . . Therefore, the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conv iction P rocedu re Act, Code (1957, 1996 Repl. Vol., 1999 Supp.), Art. 27, §§ 645A (b) through (d), shall be ap plicable to a c oram no bis proceeding challenging a criminal conviction. See, e.g., State v. Rose, 345 Md. 238, 243-250, 691 A.2d 1314, 1316-1320 (1997); Hunt v. Sta te, 345 Md. 122, 132-139, 691 A.2d 1255, 1259-1263, cert. denied, 521 U.S. 1131, 117 S.Ct. 2536, 138 L.E d.2d 103 6 (1997); State v. Hernandez, 344 Md. 721, 690 A.2d 526 (1997); Walker v. State, 343 Md. 629, 640-650, 684 A.2d 5 Skok v. Sta te, 361 Md. 52, 76 0 A.2d 647 (2 000). 11 429, 434-439 (199 6); Oken v. State, 343 Md. 256, 269-273, 681 A .2d 30, 3 6-38 (1 996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997); Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). In Curtis v. State, 284 M d. 132[ , 395 A .2d 464 ] (1978 ), a petitioner who had been convicted of murder sought to raise an allegation of ineffective assistance of counsel in a postconviction petition. The State argued that the allegation had been waived because it had not been raised in petitioner s direct appeal or in his previous petition. It relied upon Md. Ann. Code, art. 27, § 645A (c) as then ef fective. Th at statute provided that an allegation of error was deemed to have been waived when a petitioner intelligently and know ingly failed to make such allegation, and enunciated a rebuttable presumption that the petitioner intelligently and knowingly failed to make such allegation when it ha d not been made in a prior proceeding. It also provided that a petitioner could be relieved of the consequences of the waiver under special circumstances. The State argued that only a finding of special circumstances would rebut the presumption of w aiver. The cou rt rejected this argumen t. It held that Section 645A applied to waiver of fundamental rights to which the w aiver standard of Johnson v. Zerbst, 304 U.S. 458 (1938) was applicable. It further held that the presumption establish ed by the statute could be rebutted by evidence or stipulated facts showing that the petitioner did not intelligently and kno wingly fail to raise th e issu e pre viou sly. In Curtis, the parties stipu lated to facts that showed that petitioner was not aware that his counsel might have been ineffective or that he should have raised the issue previously. A ccor ding ly, the court held that the presumption had been rebutted. McElroy v. State, 329 Md. 136 (1992) involved two defenda nts who challenged their guilty pleas un der the Po st Conviction Procedure Act. Each defendant claimed that his guilty plea was defective because the judge who conducted the guilty plea neglected to explain, on the record, all of the defendant s rights. Neither defendant had filed an application for leave to appeal following his guilty plea. The court again construed the provisions of section 645A(c) creating a rebuttable presumption 12 that a pet ition er intellig ently a nd know ingly failed to raise an allegation of error affecting fundam ental constitu tional rights where that allegation could have been made in a prior proceeding, which applied because the surrender of rights by a guilty plea is a fundamental constitutional right. Each of the petitioners had been advised of his right to file an application for leave to appeal in order to seek appellate revie w of the g uilty plea conviction. Neither of the petitioners, unlike the petitioner in Curtis, offered any explanation of the reason that he did not seek review. Based on this circumstance, the court distinguished Curtis because in that case there had been a showing of facts that rebutted the presumption. 329 Md. at 147148, 151. [I]t is the court s conclusion that under the standards of waiver that apply to th e Post C onvictio n Act, p etitioner has failed to establish that his waiver of his right to challenge the conviction was not knowing and intelligent. Unlike the petitioner in Curtis, petitioner has offered no eviden ce whats oever to sh ow that his failure to challenge his conviction was not intelligent and knowing. However, petitioner challenges the assertion that these standa rds of w aiver ap ply to a co ram no bis petitio n. In Skok, the court explained its expansio n of the writ of coram nobis as follows: Along with the vast majority of appellate courts which have considered the matter, we believe that the scope of coram nobis, as delineated in United States v. Morgan, is justified by contemporary conditions and public policy. Very often in a criminal case, because of a relatively light sanction imposed or for som e other r eason, a defendant is willing to fo rego an ap peal even if errors of a constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a s ubstantial collateral consequence of the c onvictio n, it m ay be too late to app eal, and, if the defendant is not incarcerated or on parole or probation, he or she will n ot be able to challenge the c onvictio n by a petition for a writ of habeas corpus or a petition under the Post Convictio n Proced ure Act. 13 361 Md. at 77. As petitioner argues, it seems from this passage that the defendant who is the paradigmatic candidate for the availability of the expanded writ of cor am nobis is a defendant who has knowin gly eschew ed his right to c hallenge h is conviction, i.e., who has intelligen tly and know ingly waived h is right to challenge the conviction. Notwithstanding this passage , it is the court s co nclusion, for two reasons, that the waiver standards embodied in the Post Conviction Act do apply. First, to hold o therwise w ould be to render meaningless the statement made in Skok that these waiver standards apply to conclude that the Court of Appeals did not mean what it said. S econd, ap plying these w aiver standa rds is in fact consistent with the purpose of the holding in Skok. The court s purpose was to provide a remedy for person s who co uld not attack their convictions under the Post Conviction Act because they no longer were subject to any sentence or supervision. Such a re medy may be provided by granting to such persons the same right that they would have to attack the conviction if they were so subject an d that right is the right provided by the Post Conviction Act. That right is conditioned by the waive r standards s et forth in the statute. To effe ctuate that remedy, it is not necessary to provide them with a greater remedy than they wo uld have enjo yed if they were subject to the Act. Furthermore, the Act s provision that the court may decline to apply the waiver standards in special circumstances provides the court with an add itional power to relieve petitioners from the consequences of their waiver when warranted. Therefore, it is not necessary to dispense with the waiver standards of the Act in order to have the power to grant relief. (emphasis in original) (omission in original). Thomas noted an appeal to the Court of Special Appeals which affirmed in an unreported opinio n, Holme s a/k/a Tho mas v. Sta te, No. 588, Sept. Term 2005 (filed Nov. 17, 2006). The intermediate appellate court agreed with the circuit court that it was not required that Thomas be informed of the maximum penalty he faced for pleading guilty, but disagreed 14 with the circuit cou rt that Thomas had to be informed of the identification of the charge to which he was pleading guilty, concluding that Thomas 1992 guilty plea was knowing and volu ntary: It is not significant that a criminal defendant is not told the common law or statutory identifying name of the off ense with which he was charged. Rule 4-242 (c) requires that the defendant has an understanding of the nature of the charge. The nature of some crimes may be deduced from the description of the crime itself. *** The statement of facts upon which the charge was premised was read into the reco rd in appella nt s presenc e. The State clearly described a robbery with a dangerous weapon; in fact, making specific reference to the use of the pellet gun in the course of the robbery. We find that description a sufficient foundation for the trial court to determine that appellant understood the nature of the charge and the elements of the crime. (emphas is in original). In dicta, Judge J. Frederick Sharer, writing for the three judge pan el, opined that Thomas waived his right to challenge whether his guilty plea was intelligent and knowing because he failed to raise the allegation of error in an application for leave to appeal his original conviction: Appellant had the opportunity to file, and w as advised of his right to file, an app lication for lea ve to appe al followin g his 1992 conviction. For reasons that remain unexplained, he failed to avail h imself o f that rig ht. The burden, therefore, was upon appellant to convin ce the coram nobis court that his f ailure to seek some form of post-conviction relief was not an intelligent and kno wing w aiver of his rig ht. *** 15 Appellant argues that the Skok court did not equ ate the failure to file an applicatio n for leave to appeal f rom a gu ilty plea with the waiver of the right to challenge that plea through a coram n obis petition at a later time. T o interpret Skok as appellant argues would require us to ignore the Court s holding that the waiver provisions of the PCPA are applicable to coram n obis proceedings. We believe appellant s argument to be without merit. Fina lly, appellant claims that the legislature intended different results under the waiver provisions of the PCPA for criminal defendants who fail to pursue a direct appeal, as contrasted with those who fail to seek leave to appeal from a guilty plea. *** Appellant asserts that because the language, whether or not the petitioner took an appeal, was included in one subsection and not the other, the two subsections should be read differently. Appellant would have us find that waiver only occurs in three circumstances: (1) where a petitioner fa ils to file a direct app eal; (2) where a p etitioner fails to raise the issue in a d irect appeal; (3) where a petitioner files an application for leave to appeal and fails to raise the issue. We fail to apprecia te the logic of appellant s a rgumen t. Following a conviction based on a guilty plea, a convicted defendant s options with respect to allegations of error are: (1) allege the error in an application for leave to appeal; or (2) do nothing. As we read the PCPA, if a defendant does nothing, the allegation of erro r is deem ed wa ived, su bject to r ebuttal. See Md. Code Ann., Crim. Proc. § 7-106 (2001). Because of appellant s f ailure to raise any allegation of error, the statutory presumption of an intelligent and knowing waiver arose. Appellant has f ailed to produce an y evidence to re but this presumption. We granted Thomas petition for writ of certiorari, which posed three questions for our review: 16 1) 2) 3) Does a person who enters a guilty plea but who does not file an application for leave to appeal or a p ostconviction petition challenging that plea waive his right to later challenge the resulting conviction in a coram nobis petition? Did petitioner waive his right to challenge his 1992 guilty plea conviction through a coram nobis petition? Was petitioner s guilty plea entered in violation of constitutional principles when at no point during the guilty plea hearing was he informed of the ch arge to which he was p leading gu ilty or of the statutory maximum penalty for that charge? Holmes a/k/a Tho mas v. Sta te, 397 Md. 396, 918 A.2d 468 (2007). We hold that if an individual who pleads guilty, having been informed of his right to file an applic ation for leave to appeal from his conviction and sentence, does not file such an application for leave to appeal, a rebuttable presumption arises that he ha s waived the right to ch allenge his conviction in a subsequent coram nobis proceeding. Because Thomas did not rebut the presumption of waive r, nor demo nstrate spec ial circumstan ces to excuse his failure to file an application f or leave to a ppeal, his right to challenge his conviction and sentence through a writ of error coram nobis petition was waived.6 II. Discussion Thomas contends that a person who enters a guilty plea but does not file an application for leave to appeal the resulting conviction, does not waive the right to challenge his conviction in a coram nobis proceeding. He argues that under Section 7-106 of the 6 Because we find that Thomas waived his right to challenge his 1992 conviction through coram nobis proceedings, we do not address question three. 17 Criminal Procedure Article, Maryland Code (2001 ),7 the rebuttable presumption that an 7 Section 7-106 provides: (a) When fina lly litigated. For the purposes of this title, an allegation of error is finally litigated when: (1) an appellate court of the State decides on the merits of the allegation: (i) on direct appeal; or (ii) on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle; or (2) a court of original jurisdiction, after a full and fair hearing, decides on the merits of the allegation in a petition for a writ of habeas corpus or a writ of error coram nobis, unless the decision on the merits of the petition is clearly erroneous. (b) Waive r of alleg ation o f error. (1)(i) Except as provided in subpara graph (ii) of th is paragrap h, an allegatio n of error is waived w hen a petition er could ha ve made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, whether or not the petitioner took an appeal; 4. in an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that the petitioner began. (ii) 1. Failure to make an allegation of error shall be excused if special circu mstances exist. 2. The petitioner has the burden of proving that special circumstan ces exist. (2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did no t make an allegation of error, there is a re buttable presump tion that the pe titioner intelligently an d know ingly failed to make the allegation. (c) Effect of judicial decision that Constitution imposes new 18 individual waives h is right to challenge his conviction based upon a guilty plea only applies if the in dividual actu ally files an application for leave to appeal and fails to raise the allegation of error. He asserts that because the General Assembly did not include a provision in Section 7-106 (b) addressing the effect of failing to file an application for leave to appeal on post-conviction relief as it did when it addressed direct appeals, the Legislature could not have intended the waiver provisions to apply when an application for leave for appeal is not filed. Thoma s also conte nds that this Court has not equate d the failure to file an application for leave to appeal with waiver under the Post Conviction Procedure Act, citing our decision in Skok v. State, 361 M d. 52, 76 0 A.2d 647 (2 000) f or supp ort. Thomas also argues that even were a rebuttable presumption of waive r to arise in this case, that special circumstances exist which justify his failure to file an application for standard. (1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived. (2) Notwith standing an y other provision of this title, an allegation of error may not be consid ered to hav e been fin ally litigated or waive d under th is title if a court whose decisions a re binding o n the lowe r courts of th e State hold s that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the v alidi ty of th e pet ition er's conviction or sentence. Md. Code (2001), § 7-106 of the Criminal Procedure Article. Section 7-106 was derived without substantive change f rom former Se ction 645A (b) throu gh (d) of Artic le 27 of the Maryland Code. 2001 Md. Laws, Chap. 10. 19 leave to appeal his 1992 conviction because his sentence was significantly below the maximum authorized sentence f or robbery w ith a deadly weapon and because Thoma s did not anticipate that he would be subject to an enhanced penalty as a recid ivist in federa l court. Add ition ally, Thomas contends that he has rebutted the presumption of waiver because he did not intelligently and kno wingly waive his challenge to his conviction because he did not know that his right to file an application for leave to appeal included the right to challenge whether he know ingly entered his guilty plea. He also asserts that because his guilty plea was not entered intellig ently and kno wingly, he co uld not hav e intelligently and kno wingly waived his right to file for leave to appeal, citing Parker v . State, 160 Md. App. 672, 866 A.2d 88 5 (2005), f or suppor t. The State, conversely, urges us to hold that an individual who enters a guilty plea but who does not f ile an applica tion for leav e to appea l challenging his conviction waives the right to challeng e any errors in a s ubseque nt coram n obis procee ding. The State argues that the rebuttable presumption of waiver under Section 7-106 (b)(1)(i)(4) of the Criminal Procedure Article, Maryland Code (2001) ( [A]n allegation of error is waived when a petitioner could have made but intelligently and k nowing ly failed to make the alleg ation . . . in an applic ation for leav e to appeal a conviction b ased on a guilty plea . . . . ), arises when an allegation of error is not raise d in an app lication for lea ve to appe al, whethe r the application is filed or not. The State also asserts that special circumstances do not exist in this case, and that Thomas has not presented any evidence to rebut the presumption that 20 he intelligently and k nowing ly waived his r ight to file an application for leave to appeal and challenge his conviction. We have taken the op portunity most recently to explore the applicab ility of a writ of error coram nobis to the voluntariness of a criminal plea in Skok v. State, 361 Md. 52, 760 A.2d 647 (2 000). In that case, Skok pled guilty to possession of cocaine and was sentenced to imprisonment for two years with all but the time s erved susp ended. Sk ok subseq uently entered a plea of nolo contendere to another charge of possession of cocaine and was sentenced to imprisonment for one day with credit for the one day spent in jail. In neither case did Skok file an application for leave to appeal his conviction. Based upon the judgments against him in the two criminal cases, the United States Immigration and Naturalization Service subsequently initiated deportation proceedings against Skok, who subseque ntly filed a petition for a writ o f error coram nobis allegin g that the jud gments against him shou ld be vaca ted. The circ uit court initially issued an order denying Skok s petition without prejudice and also denied Skok s motion for reconsideration, stating that the writ of error coram nobis is an extrem e reme dy and is n ot appr opriate r elief in th is case. Id. at 61, 760 A .2d at 651. T he Cou rt of Specia l Appeals affirmed the judgmen t of the circuit court and held that error coram nobis relief was a limited remedy at common law. Judge John C. Eldridge, writing for this Court, reversed the Court of Special Appea ls and in so doing, recognized that at common law, the writ of error coram nobis was utilized to correct erro rs in fact aff ecting the v alidity and regula rity of the judgm ent: 21 Appare ntly the first coram nobis case in this Court was Hawkins v. Bowie, 9 G. & J. at 437 (1838), where the Court described the nature of a coram nobis proceeding as follows: A writ of error coram n obis, lies to correct an error in fact, in the same Cou rt where the record is; as if there be error in the process, or through default of the clerk , it shall be reversed in the same Court, by writ of error sued thereon befo re the sam e justice s. . . . But of an error in law, which is the default of the justices, the same C ourt canno t reverse the judgment by writ of error; nor without a writ of error, but this error ough t to be redress ed in another Court, before other justices, by writ of error. . . . It is our design, in reviewing this cause, to inquire, first, whethe r the errors assigne d fall within that class, which may, according to the rules and principles of law , be revised and corrected by writ of error coram nobis; nam ely, whether they be errors of fact, for such errors only, can warrant the same Court to reverse a judgmen t, because, e rror in fact, is not the error of the Judges. Therefore , the reversing such judgmen t, is not reversing their own judgmen t. A more detailed description of the writ of error coram nobis was set forth by Judge Delaplaine for the Court in Madison v. State, 205 Md. 425, 109 A.2d 96 (1954). The Court in Madison also pointed out that, under modern practice, a motion to the trial court may be ma de instead o f having th e writ issued out of Cha ncer y, and that co ram nob is was not available to determine whether witnesses testified falsely. The C ourt in Madison thus explained (205 M d. at 432, 109 A.2d at 99): 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 judgmen t, and has be en used in both civil and criminal cases. While the occasions for its use have been in freque nt, no one has dou bted its 22 avai labil ity. It is still available in M aryland in both civil and criminal cases. In England the writ of coram n obis was issued out of Chancery like other writs, but the procedure by motion in the case is now the accepted American practice. The present case was not brought on a writ of coram nobis. However, since the courts now act on motion to rectify such mistakes of fact as were originally reviewable on coram n obis, it is appropriate to say that coram n obis will not lie (1) to correct an issue of fact which has been adjudicated, even thou gh wron gly determined, or (2) to determine whether any witnesses testified falsely at the trial, or (3) to p resent 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 w ere material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment. It is manifest that if the writ were ava ilable to allow the court in which the judgment was ente red to decid e subsequ ently whether the witnesses who testified at the trial had testified falsely, and, if it should decide that they had, to strike out the judgment, then the judgment might be the beginning, rather than the end, of litigation. Skok, 361 M d. at 66-68, 76 0 A.2d a t 654-55 (o missions in o riginal). With re gard to voluntariness of a plea and coram nobis relief, Judge Eldridge opined about the historical and contemporary context of the extraordinary writ and determined that the traditional scope of coram nobis had been broadened to encompass legal errors of a constitutional or fundamental 23 proportion when the individual, who is no longer inca rcerated or o n parole or p robation, is faced with serious collateral consequences of his conviction: Although the scope o f the issues w hich could be raised in a traditional coram no bis proceeding may have bee n narrow , it is noteworthy that one of the issues which could be raised was the voluntariness of a plea in a criminal case. As Judge Delaplaine again stated for the Court in Bernard v. State, 193 Md. 1, 4, 65 A.2d 297, 298 (1949), the writ [of error coram nobis] will lie to set aside a judgment obtained by fraud, coercion, or duress, or where a plea of guilty was procured by force, violence, or intimidation, or where at the time of the trial the defendant was insane, when such facts were not known to the trial court when the judgment was entered, or where the accused was prevented by fraud, force, or fear from presenting defensive facts which could have been use d at his trial, when such facts were not known to the court when the judgment was entered. The writ will not lie to correct an issue of fact which has been adjudicated even though w rongly determined; nor for alleged false testimony at the trial; nor for newly discovered evidence. *** Consequently, as a result of United States v. Morgan, in both federal and state courts, the scope of a coram nobis proceeding has been broadened. As set forth by Professor Wright (3 Wright, Federal Practice and Procedure Criminal 2d, § 592, at 429-432 (198 2), footnotes omitted), [t]he present-day scope of coram nobis is broad enough to encompass not only errors of fact that affect the validity or regularity of legal proceedings, but also legal errors of a constitutional or funda mental pro portion. The conviction is presumed to have been the result of proper proceedings, and the burden is on the 24 defendant to show otherwise. In Morgan the Court said broad ly that in behalf of the unfortunates, federal courts should act in doing justice if the record makes plain a right to relief, but it also said that courts sh ould use this extraordinary remedy only under circumstances comp elling su ch actio n to ach ieve jus tice. The Morgan case has en couraged lower co urts to allow challenges of a conv iction by coram no bis on behalf of a defendant who has not yet commenced serving his sentence or has completed service of it. The Supreme Court has expressly recognized, in a different but not dissimilar context, the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. Coram nobis is available to challenge a conviction in order to remove these consequences. *** Moreover, serious collateral consequences of criminal convictions have become much more frequent in recent years. 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. *** In 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 25 error of law. Skok, 361 Md. at 68-69, 75 -78, 760 A.2d at 65 6, 659-61 (emph asis in original). Therefore, the writ of erro r coram no bis is available not only to correct errors of fact that affect the validity or regula rity of a judgment, but also to correct constitutional or fundamental legal errors for a petitioner who is not incarcerated and not on parole or probation and who is faced with serious collateral consequences of his conviction; we so recognized this in Skok: Very often in a criminal case, because of a relatively light sanction imposed or for som e other reason, a de fendant is willing to forego an appeal even if errors of a constitutional or fundamental nature m ay have o ccurred . Then, when the defendant later learns of a substantial collateral consequence of the conviction, it may be to o late to app eal, and, if the defendant is not incarcerated or on parole or probation, he or she will not be able to challenge the conviction by a petition for a writ of habeas corpus or a petition under the Post Conviction Procedure Act. Id. at 77, 760 A.2d at 6 60 (footnote om itted) (emphasis added). Thomas contends that because he is suffering serious collateral consequences as a result of his 1992 conviction, being that he was sentenced to an enhanced penalty under the federal recidivist sentencing guidelines, he is entitled to c oram no bis relief. This Court in Skok, however, recognized that the scope of coram nobis to challenge criminal convictions is, howeve r, subject to several important qualifications. Id. at 78, 760 A.2d at 661. One such qualification, Judge Eldridge iterated, is that the [b]asic principles of w aiver are applicable to issues raised in coram no bis proceedings, id. at 79, 760 A.2d at 661, citing United States v. Morgan, 346 U.S. 502, 511-12, 7 4 S.Ct. 247, 252-53, 98 L.Ed. 248, 256-57 26 (1954), in which th e Suprem e Court state d that [c]o ntinuation o f litigation after final judgment and exha ustion or w aiver of an y statutory right of review should be allowed through [the coram nob is] extraordinary remedy only under circumstances compelling such action to achieve ju stice, and ref erred to Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein the Court noted that waiver occurs when there is an intentional relinquishment or abandonment of a known right or privilege, which depends upon the particular facts and circumstances of each case. In defining the principles to be applied, this Court adopted those provisions pertaining to waiver contained in the Maryland Post Conviction Procedure Act, Section 645A (b) through (d) of A rticle 27, Maryland Code (1957, 1996 R epl. Vol., 1999 Supp .):8 8 As applicable in Skok, Section 645A (b) through (d) provided: (b) When a llegation of er ror deem ed to be finally litigated. For the purposes of this subtitle, an allegation of error shall be deemed to be finally litigated when an appellate court of the State has rendered a decision on the merits thereof, either upon direct appeal or u pon any con sideration of an application for leave to appeal filed pursuant to § 645-I of this subtitle; or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof u pon a petition for a writ of habeas corpus or a writ of erro r coram no bis, unless said decision upon the merits of such petition is clearly erroneous. (c) When allegati on of er ror dee med to have b een w aived. (1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not said petitioner actually took such as appeal), in an application for leave to appe al a con viction b ased on a guilty ple a, in any 27 Therefore, the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction Procedure Act, Code (1957, 1 996 R epl. Vo l., 1999 Supp.), A rt. 27, § 645A (b) through (d), shall be applicab le to a coram nobis proceeding challenging a criminal conviction. habeas corpus or c oram no bis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstanc es shall be upon the pe titioner. (2) When an alle gatio n of erro r cou ld ha ve been m ade b y a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guil ty plea, in any habeas corpus or c oram no bis proceeding actually instituted by said petitioner, in a p rior petition un der this subtitle, or in any other proceedin g actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation. (d) Decision that Constitution imposes standard not heretofore recognized. For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subseque nt to any decision upon the merits thereof or subsequent to any procee ding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospective ly and would thereby affect the validity of the petitioner's conviction or sentence. Md. Code (1957 , 1996 R epl. Vol., 1999 Supp.), Art. 27, § 645A (b)-(d). In 2001, Section 645A was recodified without substantive change as Section 7-106 of the C riminal Procedure Article. 2001 Md. Laws, Chap. 10. 28 See, e.g., State v. Rose, 345 Md. 238, 243-250, 691 A.2d 1314, 1316-1320 (1997); Hunt v. Sta te, 345 Md. 122, 132-139, 691 A.2d 1255, 1 259-1 263, cert. denied, 521 U .S. 113 1, 117 S .Ct. 2536, 138 L.Ed.2d 1036 (1997); State v. Hernandez, 344 Md. 721, 690 A.2 d 526 (19 97); Walker v. S tate, 343 Md. 629, 640-650, 684 A.2d 429, 434 -439 (199 6); Oken v. State, 343 Md. 256, 269-2 73, 681 A.2d 3 0, 36-3 8 (199 6), cert. denied, 519 U.S. 1079, 117 S.C t. 742, 136 L .Ed.2d 68 1 (1997); Curtis v. State, 284 Md. 13 2, 395 A.2d 46 4 (1978). Skok, 361 Md. at 79, 760 A.2d at 662. Therefore, in order to understand the body of law applicable to the present case,9 we turn to the cases themselves. In Curtis v. State , 284 Md. 132, 395 A.2d 464 (1978), the petitioner was convicted at a trial of first-degree murder and was sentenced to life imprisonment, which was affirmed on appeal. Thereafter, Curtis, represented by counsel differe nt from his trial/appellate counsel, filed a petition under the Post Conviction Procedure Act, which was denied. While Curtis remained incarcerated, he then initiated a second post conviction petition, represented by yet a third attorney, alleging for the first time tha t his Sixth Amendment right to effective assistance of counsel was violated at trial, on direct appeal, and during the first post conviction proceeding. Curtis proffered that he would have raised the issue of ineffective assistance of counsel previously but for the fact that he was never adv ised by his trial/appellate counsel nor by counsel on his first post conviction petition that he should have raised the issue; that he relied entirely upon his trial/appellate counsel and upon his counsel 9 Since Skok was decided in 2000, we have decided Conyer s v. State, 367 Md. 571, 790 A.2d 15 (2002), in w hich we h eld that und er Section 6 45A (c), a petitioner cou ld not waive what he or she could not reasonably know. Id. at 595, 790 A.2d at 29. 29 during his first post conviction petition; and that he had a seventh grade education and a low IQ. The circuit court granted the State s motion to dismiss the petition, holding that the matter of inadequacy of counsel had been waived b ecause of Curtis failure to raise it at the first post conviction proceeding. The Court of Special Appeals affirmed, iterating that the failure of Curtis attorn ey at the first post c onviction p roceeding to raise the matter of trial and appellate counsel s inadequacy resulted in waiv er because Curtis wa s not require d to intelligently and knowingly waive the issue himself. The issue presented in Curtis required this Court to interpret the waiver provisions of the Post Conviction Procedure Act of Maryland, Section 645A (c) of Article 27, Maryland Code (1957, 1976 Repl. Vol.), specifically whether the intelligent and knowing waiver standard in subsection (c), was applicable in all circumstances when a defendant could have raised an allegation of error in a post conviction petition but did not. Those provisions stated then and c ontinue to sta te as Section 7-106 (b), in applicable p art: (c) When allegation of error deemed to have been waived. For the purposes of this subtitle, an allegation of error shall be deemed to be waiv ed whe n a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct ap peal (wh ether or not s aid petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted b y said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances sha ll be upon the petitioner. When an al lega tion of er ror c ould have bee n ma de by a petitioner before trial, at trial, on direct appeal (whether or not 30 said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted b y said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitione r, but was n ot in fact so made, there shall be a rebuttab le presum ption that said petitioner intelligently and k nowing ly failed to make such allegation. Maryland Code (1957, 1976 R epl. Vol.), Article 27, Section 645A (c). We ascertained that the General Assembly did not intend that the definition of waiver set forth in subsection (c) determine in all cases the right to raise for the first time any issue in a prior conviction action, regardless of the nature of prior procedural defaults, tactical decisions of counsel, or omissio ns of c ounse l. Curtis, 284 Md. at 141, 395 A.2d at 469. Instead, we held that the intelligent and know ing waiver standard in Section 645A (c) was applicable only in those circumstances where the waiver concept of Johnson v. Zerbst and Fay v. N oia [10] [is] applicable, i.e., situations which re quire a litany w ith the defen dant. 11 Curtis, 284 Md. at 149, 395 A.2d at 474. Other situations, we noted, are be yond the scope of sub section (c), to be governed by case law or pertinent statutes or rules. Tactical decisions, when made by an authorized compete nt attorney, as w ell as legitimate proce dural require ments, w ill normally bind a criminal defendant. Id. at 149-50, 395 A.2d at 474. 10 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). 11 See In re Blessen H., 392 Md. 684, 700, 898 A.2d 980, 989 (2006) (remarking that heightened intelligent and knowing standard fo r waiver re quires a collo quy with defendant); Martinez v. State, 309 Md. 124, 133, 522 A.2d 950, 954 (1987) (iterating that an intelligent and knowing waiver colloquy with the defendant must be conducted on the record in open court). 31 In considering Curtis allegation that he was deprived of his Sixth Amendment right to effective assistance of counsel at trial and on appeal, we stated that the question of the constitutional adequacy of trial and appellate counsel s representation is governed by the intelligent and know ing standard of waiver under Section 645A (c), and that his contention could only be deemed waived for purposes of Section 645A (c) if Curtis knowingly and intelligently failed to raise it pre viously. Id. at 150, 395 A.2d at 474. Accepting the proffered facts as true, we conclude d that Cu rtis did not intellige ntly and know ingly fail to previously raise the matter of his trial [and a ppellate] cou nsel s alleg ed in adeq uacy. Therefore, the issue cannot be deemed to have been waived. Id. at 151, 395 A.2d at 475. In Oken v. S tate, 343 Md. 256, 681 A .2d 30 ( 1996) , cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed .2d 681 (1997), after having been convicted at trial of first-degree murder, first-deg ree sex ual off ense, b urglary, and the use of a handgun in a crime of violence, Oken was sentenced to death. He filed a direct appeal, after which this Court reversed only the burglary conviction. Oken subsequently filed a petition under the Post Conviction Procedure Act, which was denied after a hearing. Before this Court, after we granted Oken s application for leave to appeal from the denial of his petition for relief, Oken raised a challenge to the trial court s voir dire, wh ich allegedly had failed to ask whether any of the venire panel had a pro-death penalty bias. Because Oken had not raised the issue on direct appe al, this Court w as confro nted again with whether he had waived the error under 32 Section 645A (c). 12 Oken argued that propounding the pro-death penalty bias question was a right that could not be waived because he had not knowin gly and intelligen tly waived that right, so that the failure to raise the issue on direct appe al could not constitute waiver. We held that the right to ask pro-death pen alty bias questions could have be en waived by failure to raise the issue on direct and that t he intelligent and knowing standard of waiver did not apply under Section 645A (c). Id. at 272, 681 A.2d at 38. Oken argued, nevertheless, that circumstances existed to justify his failure to raise the allegation of error on direct appeal under Maryland Rule 8-131,13 that being th at there wa s an interven ing chang e in law when 12 Section 645A (c), as applicable in Oken, was the same as applied in Skok and delineated in footnote 8. 13 Maryland Rule 8-131 provided then, an d continue s to provide , in pertinent pa rt: (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and dec ided by the trial co urt. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial c ourt or to av oid the expen se and de lay of anothe r appeal. (b) In Court of Appeals Additional Limitations. (1) Prior Appellate Decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appea ls ordinarily will consider only an issue that has bee n raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court o f Appe als. When ever an issu e raised in a petition for certiorari or a cross-petition involves, either expressly or implicitly, the assertion that the trial court 33 Morgan v. Illinois, 504 U.S. 79, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), was decided by the Supreme Court and his counsel did not have sufficient time to raise the issue on direct appeal. We rejected this argument, concluding that the right of a defendant to conduct voir dire to identify prospective jurors who harbored disqualifying biases in favor of the death penalty had in fact been recognized by the Supreme Court and this Court in cases other than Morgan in adva nce of Oken s direct a ppeal. Oken, 343 Md. at 273-74, 681 A.2d at 38. In Walker v. S tate, 343 Md. 629, 684 A.2d 429 (19 96), the petitioner was convicted at a trial of assault with intent to murder. After his conviction was affirmed by the Court of Special Appeals, Walker filed two petitions for post co nviction relief, both of wh ich were denied. In neither of those petitions did he challenge the assa ult with intent to murder jury instruction, to which h is attorney did no t object; he subsequently filed a third petition for post conviction relief while incarcerated, asserting that the trial court had erroneously instructed the jury regar ding th e intent e lemen t. After the case ping -ponged betw een the circuit court and the Court of Special Appeals, we granted certiorari, to consider in part whether the committed error, the Court of Appeals may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was not raised in the petition or in a cross-petition. (2) No Prior Appellate Decision. Except as otherwise provided in Rule 8- 304(c), when the Court of Appeals issues a writ of certiorari to review a case pending in the Court of Special Appea ls before a decision has been rendered by that Court, the Court of Appeals will consider those issues that would have been cognizable by the Court of Special Appeals. 34 Section 645A (c) waiver provisions applied.14 We concluded that because an issue over the accuracy of a jury instruction concerning elements of an offense does not require an intelligent and knowing waiver, the failure of Walker s attorneys to object to the jury instruction or subseque ntly challenge the jury instruction on direct app eal constituted waiver. Id. at 647, 684 A.2d at 437-38. Walker argued, nevertheless, that his failure to allege the error previously was excused by special circumstances, because the instruction constituted plain error. We rejected his argument, iterating that intent was not an issue in Walker s case, an d so he was n ot depr ived of a fair tria l. Id. at 650, 684 A.2d at 439. In State v. Hernandez, 344 Md. 721, 690 A.2d 526 (1997), the petitioner entered a guilty plea to vario us drug offen ses. After he pled guilty to two of the charges, Hernandez filed an application with the Court of Special Appeals for leave to appeal the resulting convictions, contending among other things that his guilty plea was not voluntarily entered. The application was summarily denied. Hernandez, while incarcerated, then filed an application for post conviction relief, raising the voluntariness of his guilty plea, which was denied when the circuit court held that the issue of voluntariness had been finally litigated when the Court of Special Appeals denied Hernandez s application f or leave to appeal. When we finally considered the issue under 14 Section 645A (c ), as applicab le in Walke r, was the sa me as app lied in Skok and stated in footnote 8. 35 Section 645A (a)(1) and (b) of Article 27 , Maryland Code (1 957, 1996 Re pl. Vol.),15 we 15 Section 645A (a)(1) and (b) of Article 27, M aryland Cod e (1957, 19 96 Rep l. Vol.), as applied in Hernandez, stated: (a) Right to institute proceeding to set aside or correct sentence; time of filing initial proceeding. (1) S ubject to the provisions of paragraph (2) and (3) o f this subsection, any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation, including any person confined or on parole or probation as a result of a proceeding before the District Court who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the C onstitution or la w of this State, or that the court was without jurisdiction to impose the sentence, or that he sentence exceeds the maximum authorized by law, or that the sentence is otherwis e subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy, may institute a proceeding under this subtitle in the circuit court for the county to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction. *** (b) When allegation of error deemed to be finally litigated. For the purposes of this subtitle, an allegation of error shall be deemed to be fina lly litigated when an appellate court of the State has rendered a decision on the merits thereof, either upon direct appeal or upon any consideration of an application for leave to appeal filed pursuant to § 645-I of this subtitle; or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a p etition for a writ of habeas corpus or a writ of error coram nobis, unless said decision upon the merits of such petition is clearly erroneous. 36 concluded that the issue was not finally litigated because the re was no decision on the me rits of his claim. In dicta, we noted that because Hernandez had filed an ap plication for leave to appeal in which he alleged that his guilty plea was not voluntary, he had not waived his right to assert the error in a petition to secu re post c onvictio n relief. Id. at 728, 690 A.2d at 530. In Hunt v. Sta te, 345 Md. 122, 691 A .2d 125 5, cert. denied, 521 U.S. 1131, 11 7 S.Ct. 2536, 138 L.Ed.2d 1036 (1997), the petitioner was convicted by a jury of first-degree murder and sentenced to death. A fter a number of proceedings in the State and federal courts, Hunt appeared for the fourth time before this Court, challenging the denial of his second petition for post co nviction relief. We considered whether the waiver provisions of Section 645A (c) applied and concluded that Hunt s allegations of error were not controlled by the intelligent and knowin g standard of waive r, and beca use Hun t made the tactical decisio n not to raise h is challenges at trial, on direct appeal, or in his first post conviction petition, the challenges were waived.16 Id. at 143, 150, 157, 691 A.2d at 1265, 1268, 1272. In State v. R ose, 345 Md. 238, 691 A.2d 1314 (1997), the petitioner was convicted after a jury trial of first-degree murder and sentenced to life imprisonment, which was affirmed on appea l. Rose failed to raise any challenge to the constitutionality of the reasonab le doubt instruction provided to the jury and subsequently filed a petition under the Post Conviction Procedure Act, alleging as his sole ground for relief that he was denied the 16 Section 645A (c), as applicable in Hunt, was the same as applied in Skok as provided in footnote 8. 37 effective assistance of c ounsel at his trial; his applicatio n was de nied. Wh ile still incarcerated, Rose filed a second post conviction petition in which he alleged that the reasonab le doubt instruction provided to the jury was constitutiona lly defective. Th e circuit court denied post conviction relief, finding that Rose s allegation of error had been waived because it was not raised at trial, on appeal, or at the first post conviction petition hearing. The Court of Special Appeals, however, vacated the judgment of the circuit court for consideration on remand of the intelligent and knowing standard waiver of Section 645A (c).17 We granted the State s petition for a writ of certiorari and reversed the Court o f Special Appeals, agreeing with the circuit court that Rose had wa ived his right to challenge the reasonab le doubt jury instru ction in a po st conviction petition . Id. at 250, 691 A.2d at 1320. In reaching our conclusion based upon our cases interpreting Section 645A (c), we iterated that simply because an asserted right is derived from the Constitution of the United States or the Constitution of Marylan d, . . . does not necessarily make the intelligent and knowing standard of waiver applicable. Id. at 248, 691 A.2d at 1319. We held that allegations involving deficient jury instructions were not controlled by the intelligent and knowing standard of waiver but may be effectively waived by the failure of the defendant or his attorney to object at trial or their failure to raise the issue on direct appeal. Id. at 250, 17 Section 645A (c), as applicable in Rose, was the same as applied in Skok as articulated in footnote 8. 38 691 A.2d at 1318. Application of the principles from Skok and the cases upon which Judge Eldridge in Skok relied yields various conclusions. Preliminarily, although Section 645A (b) through (d) do not by their terms apply to coram nobis proceedings when the petitioner is not incarcerated or on parole or probation, (Section 645A (a) provides that any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation . . . may institute a proceeding under [the Post Conviction Procedure Act] subtitle. ),18 in Skok we specifically stated that Art. 27, § 645A (b) through (d), shall be applicable to a coram nobis proceeding challenging a criminal conviction. 361 Md. at 79, 760 A.2d at 662 (citations omitted). Because Section 645A (b) through (d) did apply, and now Section 7-10 6 of the C rimin al Proced ure A rticle , Ma ryland Co de (2 001) doe s app ly, Thomas argues that the language of Section 7-106 (b) excepts a defenda nt who d oes not file an application for leave to appeal his conviction and sentence from its waiver provisions because it allegedly differentiates between failure to raise an allegation of error in a direct appeal an d in an app lication for lea ve to appe al: [A]n allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 18 See Edward A. Tom linson, Post-Conviction in Maryland: Past, Present and Future, 45 Md. L. Rev. 927, 932 (1986) ( The scope of the remedy as specified in the Act has remained basically unchanged since 1958. The remedy is available to any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation. ). 39 *** 3. on direct appeal, whether or not the petitioner took an appeal; 4. in an app lication for lea ve to appeal a conviction based on a guilty plea . . . . Section 7-106 (b)(1)(i)(3)-(4) of the Criminal Procedure Article, Maryland Code (20 01). Thomas contends that becaus e the Gen eral Assem bly did not inclu de a prov ision in Section 7-106 (b) addressing th e failure to file an applicatio n for leave to appeal, as it did in situations involving failure to take direct appeals, waiver does not apply when an application for leave to appeal is not filed, as adverse to when it is and the alleged error is not included. In so arguing, he relies on footnote five of the dissent in McElro y v. State, 329 Md. 136, 617 A.2d 1068 (1993), which states: [I]t is clear that filing an application f or leave to a ppeal, in which is included any and all allegations of error a defendant may have, is not a condition precedent to seeking post conviction relief. Section 645A(c )(1) make s clear that, unlike in the case of direct appeal, a defendant does not waive an allegation of error that could have been raised by way of application for leave to appeal simply by not filing such an application. That section provides: For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have ma de, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct ap peal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or c oram no bis proceed ing actually instituted by said petition er, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make su ch allegatio n shall be excused because of special circumstances. The burden of proving the existence of such special circumstanc es shall be upon the pe titioner. 40 Section 645A(c )(2), largely tracking the language of 645A(c)(1), is of similar effect. This difference in treatment of direct appeals and applications for leave to appeal clearly indicates that the Legislature intended th at the presum ption apply on ly in the case of direct appeals. To construe the statute any other way requires that langua ge similar to th at used in co nnection w ith direct appeals be added to th e provision pertaining to applications for leave to appeal. Moreover, § 645A(c)(1) and (2) were amended in 1988 to be consistent with leg islation e nacted in 1983 , see Ch. 295, Acts of 1983, which added subsection (e) to Maryland Code (1980, 1983 Repl.Vol.) § 12-302 of the Courts & Judicial Proceedings Article, and made judgments entered on guilty pleas subje ct to review only on application for leave to appea l. See also Ch. 726, Acts of 1988, the preamble to which provides: FOR the purpose of clarifying that, if a person fails under certain circumstances to allege an error in an application for lea ve to appe al a certain conviction, the allegation is deemed to be waived for the purposes of a post conviction proceeding; clarifying a certain presumption relating to failure to make a certain allegation of error; and generally relating to waiver of allegations of error in a certain ap peal. When the amendment was effected, the parenthetical condition pertaining to direct appeals was already in the Code; nevertheless, the Legislature chose not to include such language with respect to the application for leave to appeal provision. Because the provision pertaining to direct appeals has been interpreted to mean that failure to raise an issue on direct appeal constitutes a waiver, whether or not a direct appeal was taken, and the Legislature is presumed to have had knowledge of that interpretation when it ad ded the lan guage pe rtaining to applications for leave to appeal, it must have intended a different result in those cases invo lving applic ations for lea ve to appeal. Thus, the history of that provision also contradicts the holding o f the interm ediate appe llate court. Id. at 157-58 n.5, 617 A.2d at 1079 n.5 (Bell and Chasanow, JJ., dissenting) (some citations 41 omitted) (emphasis in origina l). Thomas fails to recogniz e, howev er, that Skok, a case which was decided subsequent to McElroy, involved th e failure to file an application for leave to appeal, and this Court had no qualms in applying Section 645A (b) through (d) to the failure to file an entire application. Rather, it would be illogical to p ermit a defendant who fails to file an application for leave to appeal to be able to seek coram nobis relief without confronting the waiver provisions of Section 645A, while a similarly situated defendant who diligently files an application for leave to appeal would confront a presumption that he intelligently and knowingly waived any allegation of error not raised earlier. Following a conviction based on a gu ilty plea, a convicted defendant s options with respect to allegations of error are to raise them in an application for leave to appeal, or n ot. Certainly the G eneral As sembly did not intend for a defendant who pleads g uilty and does n ot file an app lication for lea ve to appe al his conviction to be afforded an easier avenue to secure post conviction review than a defendant who pursues what appellate review is available to him. The legislative history of the waiver provisions su pports this conclusion. In 1988, the General Assembly amended the waiver provisions of the Post Conviction Procedure Act to, in relevant part, provide that an allegation of error shall be deemed to be waived when a petitioner could have made, bu t intelligently and k nowing ly failed to make, such allegation . . . in an application for leave to appeal a conviction based on a guilty plea . . . . House Bill 1176 (1988); M d. Code (1 957, 198 7 Repl. Vol., 1988 Supp.), Article 27, Section 645A (c). 42 The purpose of Hou se Bill 1176 w as to clarify[] tha t, if a person f ails under ce rtain circumstances to allege an error in an application for leave to appeal a ce rtain conviction, the allegation is deemed to be waived for the purposes of a post conviction proceeding. The Senate Judicial Pro ceedings C ommittee s Bill Ana lysis of Hous e Bill 1176 similarly explicated that the amendment filled a gap in the former waiver provisions: Under this bill, a person convicted of a crime and incarcerated or on parole or probation is considered to have waived the right to pursue an allegation of error by way of a post conviction proceeding where the defendant could have made, but intelligently and knowin gly failed to make su ch an allega tion in an application f or leave to a ppeal a co nviction ba sed on a g uilty plea. Where an allegation of error could have been made in an application for leave to appeal a conviction based on a guilty plea but was not, there is a rebuttable presumption that the person intelligently and knowingly failed to make such an allegation. *** Under existing law, the right to m ake an alleg ation of erro r in a post conviction proceeding is waived if the person could have made, but intelligently a nd knowingly failed to make such an allegation before trial, at trial, on direct appeal (whether or not appeal is taken), in any habeas corpus or coram nobis proceeding actually instituted, in a prior petition un der this statute to correct an error, or in any other proceeding actually instituted by the person. When an allegation of error could have been ma de but w as not, there is a rebuttable presump tion that the pe rson intelligen tly and knowingly failed to make such an allegation. The current law does not sp ecifically apply to the failure to allege the error in an application for leave to appeal a conviction based on a guilty plea. 43 Senate Judicial Proceedings Committee, Bill Analysis to House Bill 1176 (1988). The Fiscal Note to House Bill 1176 further remarked that the bill clarifies that a person has waiv ed his right to challeng e when he fails to allege error when appealing a conviction based on a guilty plea. Department of Fiscal Services, Fiscal Note to House Bill 1176 (1988). It is clear, therefore, that the General Assembly intended to treat direct appeals and applications for leave to appeal consistently for purposes of the waiver analysis; waiver occurs when an alleged error could have been raised but was not, whether an application for leave to appeal is filed or not. Thomas argues that h e did not kn owingly and intelligen tly fail to file an application for leave to appeal because he alleges that he did n ot know ingly and intellige ntly enter his guilty plea. Specifically, Thomas asserts that he could not have intelligently and knowin gly waived his right to file for leave to appeal because he was not informed of the maximum sentence he could have received and because he was not informed of the nature of the charges against him and ergo , his guilty plea was not intelligent and knowing. In essence, Thomas conflates whether he knowingly and intelligently waived his right to file an application for leave to appeal with the voluntariness of his guilty plea, relying upon the Court of Special Appeals s opinion in Parker v. State, 160 Md. App. at 672, 866 A.2d at 885, and again on the dissent in McElroy, 329 Md. at 136, 617 A.2d at 1068. In Parker v . State, 160 Md. App. at 672, 866 A.2d at 885, the petitioner entered various pleas in three separate criminal cases in 1996: in two of the cases, Parker plead 44 guilty to theft over $30 0, and in a third case, Parker pled guilty to theft over $300 and entered a plea of nolo contendere to a handgun violation. Parker was never informed of the consequences of his pleas, nor was he specifically addressed to determine how he was pleading or whether he understood his plea in any of the three cases; in one of the cases, Parker was not present at his guilty plea hearing. He did not file any applications for leave to appeal from the resulting convictions and sentences. S eeking to a void being sentenced in federal court und er recidivist fe deral senten cing guid elines, Parker subsequently filed petitions for writs of error coram nobis alleging that his guilty pleas were not knowing and voluntary. The circuit court denied the petitions without explanation, and the Court of Special Appeals reversed. The intermediate appellate court in a post-Skok context, first determined, that Parker could proceed with his petition for a writ of erro r coram no bis because he faced significant collateral con sequenc es in federa l court beca use of his g uilty pleas and nolo contendere plea and he was not incarcerated. The court then concluded that Parker s guilty plea s and nolo contend ere p lea w ere n ot en tered knowingly an d voluntarily, and theref ore, he did n ot waive h is right to seek coram nobis relief: The im portant poin t, for presen t purposes, is th at a guilty plea must be intelligent and knowing, i.e., it is subject to the Johnson v. Zerbst standard. In the present c ase, appellan t s petitions indic ate that this standard was not met, and thus there is no waiver. Parker, 160 Md. App. at 686, 866 A.2d at 893 ( citations omitted ) (emph asis in or iginal). Parker, however, was not advised in any of th e proceed ings abou t his right to file 45 applications for leave to appeal so th at he could not have k nowing ly and intelligently waived his right to file. As a result, the case is distinguishable from the present case, because Thomas was expressly informed not only of his right to file an application for leave to appeal to challenge w hether his g uilty plea was entered freely and voluntarily, but that the application must have been filed in writing with in thirty da ys of the hearing. Whether or not the standards for voluntariness were conflated in Parker, it is clear that Parker could not have intelligently and knowingly waived his right to file an application for leave to appeal because he was never advised of that right. Skok, and its predecessors, specifically mandate that collo quy. In McElro y v. State, 329 Md. at 136, 617 A.2 d at 1068, M cElroy appe ared with counsel and ple d guilty to d istributio n of PC P. At h is guilty ple a hearin g, McElroy was informed that his guilty plea limited his right on appeal; the judge told him that he had the right to appeal to the Court of Special Appeals, but only on limited grounds, including whether he freely and voluntarily entered his guilty plea. After McElro y was senten ced to fifteen years imprison ment, he w as advised that he had thirty days within which to apply for leave to appeal to the Court of Special Appeals; he did not file an application for leave to appeal. Subsequently, McElroy filed a petition for post conviction relief alleging th at his guilty plea was not intelligent and knowing because the trial court did not advise him that the court was not b ound by the p rosecutor s s entence re comme ndation, and that if the court imposed a sentence m ore severe than the on e recomm ended he had no rig ht to withdra w his 46 plea. The circuit court denied McElroy s petition on its merits. The Court of Special Appea ls granted McElroy s application for leave to appeal the denial of his petition for post conviction relief and held he had waived his right to post conviction review. When this Court confronted the issues raised, the majority did not address whether the waiver provisions applied when an application for leave to appeal a conviction was not filed, but instead, applied the provisions and held that McElroy had not rebutted the presumption of waiver because, unlike what was proffered to the court by the petitioner in Curtis, 284 Md. at 132, 9 5 A.2d at 464, McElroy made no effort to rebut the presumption that he waived the claim that his guilty plea was not know ingly and intelligen tly entered by failing to raise that issue in an application for leave to appeal the conviction and sentence based on his guilty plea to the Court of Special Appeals. McElroy, 329 Md. at 149, 617 A.2d at 1074. W e also conc luded that M cElroy s failu re to seek appellate review was not excused by any special circumstances, explaining that he was advised of his right to seek review in the C ourt of Sp ecial App eals, which the majority asserted, McElroy understood: Likewise, there is no evidence in this record of any special circumstances that would excuse his failure to seek direct appellate review of his conviction and sentence. He was advised that the Court of Special Appeals was an available resource for that purpose and told that he had to seek such review within 30 days of his conviction. He assured the trial judge that he understood that right. For these reasons, he has failed to meet the burden imposed upon him by Art. 27 , § 645A(c)(1) to prove such special circums tances. Cf. Washington v. Warden, 243 Md. 316, 220 A.2d 607 (1966) (special circumstances found wh ere 47 post conviction petitioner proved that he had not raised issue in earlier post conviction proceeding because he was suffering from a mental illness which prevented him from assisting his counsel). Id. at 148-49, 617 A.2d at 1074-75. Thomas, however, again tries to b ring himse lf within the rationale of th e dissent in McElroy by asserting that he did rebut the presumption of waiver through the transcript of what occurr ed on th e record . Id. at 158-63 , 617 A.2d at 1079-8 2 (Bell and Chasa now J J., dissenting). Thomas contends that like M cElroy, he w as not adeq uately informed and was not aware of his potential defenses or how to o btain relief, an d therefore , he could not have intelligently and knowingly failed to raise them in an application for leave to appea l. Id. Thomas, however, was expressly informed of his right to file an a pplication fo r leave to appeal to challenge whether his guilty plea was entered freely and voluntarily, and he affirmative ly indicated tha t he unders tood his ap pellate rights, unlike those infirmities described in the McElroy dissent. Unlike what the dissent emphasized in McElroy, Thomas was represented by counsel during his coram nobis proceeding; he had a hearing and presented evidence as to why his failure to file his application for leave to appeal was not intelligent and knowing, which the hearing judge rejected. Thomas also alleges that his failure to file his application for leave to appeal was not intelligent and knowing, because, while he was adv ised of his a bility to seek app ellate remedies for involuntariness, he was never advised that he could challenge his guilty plea for lack of knowledge. In Kang v. State, 393 Md. 97, 899 A.2d 843 (2006), we discussed the 48 waiver colloquy and determined that its sufficiency depend[s] upon the facts and circumstances of eac h case, and that the record must indicate that the defendant has been informed of the nature of the right to be waived, and that the court has ascertained the defendant s awa reness of that r ight. Id. at 111-12, 899 A .2d at 851-5 2. If Thom as is asserting that the trial cou rt must use the term knowing when informing a defendant pleading guilty of his right to file an application for leave to appeal and challenge whether his guilty plea was entered freely and vo luntarily, he fails to cite to any authority for such. Davis v. State, 278 Md. 103, 361 A.2d 113 (1976) (noting that guilty plea hearing litany does not require a specific enumeration of the rights waived). Rather, under the Johnson v. Zerbst, 304 U.S. at 464 , 58 S.Ct. at 1023, 82 L.Ed. at 1466, standard, knowing connotes an intentional relinquishment or abandonment of a known right or privilege ; the record specifically reflects that T homas w as advised and und erstood his right to file an application for leave to appea l to challe nge his guilty plea . Judge Pierson expressly found that Thomas had waived h is right to secu re coram n obis relief by kn owingly and intelligently failing to file an application for leave to appeal his conviction and sentence, a finding of which we do not mo dify abse nt clear e rror. Hunt, 345 Md. at 166, 691 A.2d at 1276. Thomas, nevertheless, argues that special circumstances exist to excuse his failure to raise his allega tion of error in an applicatio n for leave to appeal h is 1992 conviction because he received a sentence below the maximum authorized sentence by law for the crime he was convicted. To accept Thomas argument would require us to extend the application 49 of the special circumstances exception to all individuals who plead guilty and receive sentences that are less than the maxim um authorized by law , which is the hallmark of guilty pleas. See Do tson v. State, 321 Md. 515, 518, 583 A.2d 710, 711 (1991) (recognizing that plea agreements benefit defendants who give up the possibility of acquittal following trial for the certainty of a relatively lenient disposition included as part of a p lea agreement ). Such an exception would render coram nobis relief, contrary to the limited nature of the extraordinary writ, the general rule rather than the exc eption. See Skok, 361 Md. at 72, 760 A.2d at 658 (noting that the writ of error coram n obis is an extraordinary remedy ). Thoma s also conte nds that his failure to file an application for leave to appeal from his conviction is excused by special circumstances because he did not know in 1992 that he could be sentenced in 2005 under the federal sentencing guidelines. In 1992, when Thoma s pled guilty, fede ral enhanc ements were ava ilabl e for care er of fend ers a nd clearl y, Thomas conviction and sente nce were warn ing enough of possible enhancem ents for a subsequent criminal violation. 18 U.S.C., U.S.S.G., Section 4B1.1 (effective November 1, 1987). See Booze v. S tate, 140 Md. App. 402, 408, 780 A.2d 479, 483 (2001) ( [I]t is the conviction itself that warns a defendant of the enhanced penalty. ). Further, while Maryland Rule 4-242, in 1992 and now,19 requires the judge to inform the defendant of the direct 19 In 1992, Maryland Rule 4-242 (c) provided: Plea of Gu ilty. The cou rt may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State's 50 Atto rney, the attorney for the defendant, or any combination thereof, that (1) the defendant is ple ading volu ntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. The court may accept the plea of guilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court sh all enter a plea of not gui lty. In 2001, in res ponse to re cent chan ges in federal immigration laws, Rule 4-242 was amended. Skok, 361 Md. at 77, 760 A.2d at 661. The amendment required the court, before accepting the defen dant s guilty or n olo contendere plea, to inform the defendant that if he is not a United States citizen, he may face deportation, detention, or ineligibility for citizenship. Rule 4-242 (c) and (e) now provides: (c) Plea of guilty. The cou rt may accept a plea of gu ilty only after it determines, upon an examination of the defendant on the record in open court conducte d by th e cou rt, the State's Atto rney, the attorney for the defendant, or any combination thereof, that (1) the de fendant is p leading vo luntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual ba sis for the plea. In addition, before accepting the plea, the court shall co mply with section (e) of this Rule. The cou rt may accept th e plea of g uilty even though the defendant does not admit guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of not gu ilty. *** (e) Collateral Con sequences of a Plea of Gu ilty or No lo Contendere. Before the court accepts a plea of guilty or nolo contendere, the court, the State's Attorney, the attorney for the defenda nt, or any comb ination thereo f shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship and (2) that the defendant should consult with defense counsel if the defendant is represented and needs additional information concerning the potential consequences of the plea. The omission 51 consequences of the p lea, Yoswic k v. State, 347 Md. 228, 242, 700 A.2d 251, 258 (1997), the failure to advise of collateral con sequenc es then and now ha ve not bee n the basis to vacate a guilty plea; now it is explicated in the Rule, which provides: [O]mission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. Th e enhanc ed recidivist penalty received by Thomas under the federal sentencing guidelines for his unrelated future criminal conduct was a collateral consequence of his 199 2 guilty ple a, see Haw kins v. State, 302 Md. 143, 148, 486 A.2d 179, 182 (1985) (remarking that punishment under repeat offender statutes is only for the new crime, being greater where the defendant habitually com mits crimes ), and theref ore, the circuit c ourt, before accepting his guilty plea in 1992, was not required to advise him of the possibility of being sen tenced in th e future as a recidivist. In conclusion, because Thomas was informed of, and understood, his right to file an application for leave to appeal, and did not file an application f or leave to a ppeal, a rebu ttable presumption arose that he waived his right to challenge his conviction through a coram no bis proceeding. Thomas did not rebut the presumption, nor did he establish special circumstan ces to exc use his failur e to file an ap plication for leave to app eal, and thus, his right to challeng e his conv iction and sentence through a writ of error coram nobis petition was waived. of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. 52 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED WITH COSTS. 53 In the Circu it Court for B altimore C ity Case No. 37-C-04-592321035 IN THE COURT OF APPEALS OF MARYLAND No. 140 September Term, 2006 DARRELL HOL MES A/K/A LENDRO THOMAS v. STATE OF MARYLAND Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) JJ. Dissenting Opinion by Raker, J., w hich Bell, C.J. and Greene, J., Join. Filed: September 21, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Rake r, J., dissen ting, join ed by Be ll, C.J., an d Gree ne, J.: The majority cuts the heart out of the writ of coram nobis in Maryland by holding that petitioner waived the right to challenge his conviction through a petition for writ of coram nobis by his failure to file an application for leave to a ppeal his guilty plea or a petition for post-conviction relief. If a person must first file an app lication for leave to appeal or a petition for post-conviction relief, will a writ of error coram nobis ever be appropriate? In effect, the majority overrules Skok v. State, 361 Md. 52, 760 A.2d 647 (2000), sub silentio. I would hold that a person who enters a guilty plea but who does not file an application for leave to appeal or a post-conviction petition challenging that plea does not waive the right to later c hallenge th e resulting co nviction in a coram no bis petition. I w ould remand the matter to th e Circuit C ourt for that c ourt to consider whether petitioner satisfied the requirements for relief, particularly the threshold q uestion of w hether valid reasons exist for his failure to attack the conv iction earlier. A writ of error coram nobis, like a habeas corpus proceeding and a proceeding under the Maryland Uniform Post Conviction Procedure Act, may be used to collaterally challenge a crimina l judgm ent. Skok, 361 M d. 52, 760 A .2d 647; Ruby v. State, 353 Md. 100, 111, 724 A.2d 673, 678 (199 9). It is an extrao rdinary remed y, to be employed only upon compelling circumstances. Skok at 72, 760 A.2d 647 (citing United States v. Morgan, 346 U.S. 502, 51112, 74 S. Ct. 247, 252-53, 98 L . Ed. 248 (1954)). Re lief pursuant to a writ of error coram nobis is justified only under circumstances compelling such action to achieve justice and only where s ound rea sons exist f or the failure to seek app ropriate earlier relief. United States v. Morgan, 346 U.S. 502, 511-12, 74 S. Ct. 247, 252-53, 98 L. Ed. 248 (1954). One of the issues which may be raised by way of coram nobis is the voluntariness of a plea in a crimina l case. Skok, 361 Md. at 68, 760 A.2d 656. In Skok v. Sta te, 361 M d. 52, 760 A .2d 647, w e explored the applicab ility of a writ of error coram nobis to the claim of an involuntary plea. This court, like other state courts, embraced the rationale of the leading Supreme Court case on coram nobis proceedings, United States v. Morgan. We stated as follow s: Along with the vast majority of appellate courts which have considered the matter, we believe that the scope of coram nobis, as delineated in United States v. Morgan, is justified by contemporary conditions and public policy. Very often in a criminal case, because of a relatively light sanction imposed or for some other reason, a defendant is willing to forego an appeal even if errors of a constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a substantial collateral con sequenc e of the co nviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation, he or she will not be able to challenge the conviction by a petition for a writ of habeas corpus or a petition under t he Pos t Conv iction P rocedu re Act. Id. at 77, 760 A.2d at 660. We recognized that the scope of coram nobis to challenge criminal convictions is, however, subject to several important qualifications. Id. at 78, 760 A.2d at 661. We noted that the three essential conditions necessary to grant relief pursuant to a coram nobis petition were the grounds for challenging the criminal conviction m ust be of a c onstitutional, jurisdictional or fundamental character, the burden of proof is on petitioner to rebut the -2- presumption of regularity that attaches to the underlying criminal procedure, and the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction. Id. at 78-79, 76 0 A.2d 6 61-62. In a ddition, we noted that b asic princip les of waiver are app licable to coram nobis p roceed ings. Id. at 79, 76 0 A.2d 661-6 2. Discussing waiver, we stated as follows: Basic principles of waiver are applicable to issues raised in coram nobis proceedings. Similarly, where an issue has been finally litigated in a prior proceeding, and there are no intervening changes in the applicable law or controlling case law, the issue m ay not be relitigate d in a coram nobis action. Therefore, the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction P rocedu re Act, C ode (19 57, 199 6 Rep l. Vol., 1999 Supp .), Art. 27 , § 645A (b) through (d ), shall be app licable to a coram nobis proceeding challenging a criminal convic tion. Skok at 79, 760 A.2d at 661-662 (some internal citations omitted). Based on this language, the majority conclu des that a pe titioner waiv es coram n obis relief if th e individua l failed to file an application for leave to a ppeal or to file a petition for post-con viction relief. The majority s reliance on this language to support its holding is misplaced. Writing for the Court in Skok, Judge Eldridge discussed the reasons a defendant might not challenge a n error by mo ving to w ithdraw a p lea or by way of post-conv iction action. He stated as follows: Very often in a criminal case, because of a relative ly light sanction impos ed . . . a defendant is willing to forego an appeal even if errors of a constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a substantial collateral consequence of the conviction, it may be -3- too late to appeal, and . . . he or she will not be able to challenge the conviction by a petition for a writ of habe as corpus or a petition under the Post Conviction Procedure Act. Skok, 361 Md. at 77 , 760 A.2d at 660 . The situation Judge E ldridge addressed is very common, and, in fact, reflects the circumstances in both Skok and the case at bar. This C ourt, in Skok, could not have meant what the majority today holds. Petitioner contends that because he is suffering serious collateral consequences as a result of his 1992 conviction, i.e., that he was sentenced to an enhanced penalty under the federal recidivist sentencing guidelines, he is entitled to the same coram nobis relief that Skok enjoyed. Petitioner argues that, like Skok, he has not waived h is right to seek error coram nobis relief because he did not file an application for leave to appeal his conviction and sentence. This argum ent is pe rsuasiv e. The procedural similarities between petitioner and Skok illustrate that this Court in Skok did not mean for waiver to apply to collateral attacks on guilty pleas where no applicatio n for lea ve to ap peal w as filed . Skok held that the voluntariness of a guilty plea may be raised in a coram nobis proceeding even when it had not previo usly been raised. Like petitioner, Skok pled guilty; Skok never filed an application for leave to appeal and a requ est to withdr aw his gu ilty plea; and Sko k did not file a petition for post-conviction relief raising the voluntariness of his guilty plea . Id. at 56, 760 A.2d 649. Despite his failure to ra ise his claim prior to the action at issue, Skok was not found to have waived the comm on law rig ht to file a writ o f error c oram n obis. See id. at 79, 760 A.2d 661- -4- 662. We stated as follows: The issues concerning Skok's pleas have not previously been litigated, and Skok is clearly facing substantial collateral consequences from his two convictions. Skok, not being incarcerated or on parole or probation as a result of the convictions, presently has no other com mon law or statutory rem edy. Under th e circumsta nces, Sko k was en titled to a hearing under h is motio n for co ram no bis relief . Id. at 82, 760 A. 2d at 6 63. S imila rly, petitioner is suffering serious collateral consequences.1 Because he is not inca rcerated, on parole or probation, he too has no other avenue of relief. His claims con cerning the constitutional infirmity of his plea have never before been litigated. No waiver was found in Skok. The same should hold true in the instant case there should be no waiver fo r failure to file application for leave to appeal or post-conviction relief. Petitioner presents a second argument. He asserts that the waiver language of § 7106(b) does not apply to defendants who do not file an application for leave to appeal because the General Assembly did not specifically address the case of those wh o never file such an applicatio n even tho ugh they spe cifically address those wh o fail to file a direct appeal. Specifica lly, petitioner contras ts the langua ge in Sectio n 7-106(b )(1)(i)(4) of the Criminal Procedure A rticle of the M aryland Cod e pertaining to application s for leave to 1 In United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed . 248 (1954), respondent Morgan had pled guilty in federal court and had served his four year prison sentence. Several years later, he was conv icted in a New Y ork State court and was sentenced to a longer term as a second offender because of the prior federal conviction. The Supreme Court considered this enhanced sentence as a serious collateral consequence. -5- appeal with the language in Section 7-106(b)(1)(i)(3) concerning direct appeal. Section 7106(b)(1)(i) states as follows: (b) Waiver of allegation of error. (1)(i) Except as provided in subparagraph (ii) of this parag raph, an alleg ation of erro r is waived when a petitioner could have made but intelligently and know ingly faile d to ma ke the a llegation . . . 3. on dire ct appe al, whether or not the petitioner took an appeal; 4. in an app lication for lea ve to appeal a conviction based on a guilty plea ; . . . Md. Code (2001, 2006 Cum. Supp.), § 7-106(b)(1)(i) of the Criminal Procedure A rticle (emphas is added). Petitioner then argues that waiver does not apply when an application for leave to appeal is not filed, as compared to when an application is filed and the alleged error is omitte d. In essence, petitioner asks us to adopt footnote five f rom Chief Jud ge Robert Bell s dissent in McElro y v. State, 329 Md. 136, 617 A.2d 1068 (1993). In that case, McElro y appeared with couns el and p led guilt y to distribu tion of P CP. Id. at 143, 617 A.2d 1072. He had never filed an application for leave to appeal from his guilty plea but he subsequen tly filed a petition for post-conv iction relief alleg ing that his gu ilty plea was involuntary on the grounds that it was not intelligent and knowing because the trial court did not advise him that the court was not bou nd by the prosecutor s sentence recommend ation, and that if the court imposed a sentence more sev ere than the one recom mended he had no right to withdraw his plea. Id. at 143-45, 617 A.2d 10 72. The C ircuit Court d enied M cElroy s petition on its merits, not on w aiver. Id. at 145, 617 A.2d 1073. The Court of Special Appeals granted -6- McElroy s application for leave to appeal the denial of his petition for post-conviction relief. Id. That court held McElroy had waived his right to post-conviction review. Id. When this Court confronted the issues raised, the ma jority explicitly declined to address the question of whether the waiver provision contained in the Maryland Post Conviction Procedu re Act, Sec tion 645A(c) of Article 27 of the Maryland Code2 applied when an application for leave to appeal a convic tion and senten ce wa s not file d. Id. at 146, 2 As applicable in McElroy, the pertinent part of § 645A read as follows: (c) When a llegation of er ror deem ed to have been waived. (1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or c oram no bis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstanc es shall be upon the pe titioner. (2) When an allegation of error c ould have bee n ma de by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or c oram no bis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceedin g actually instituted by said petitioner, but was not in fact so m ade, there sh all be a rebutta ble presumption that said petitioner intelligently and knowingly failed to make such allegatio n. Md. Code (1957, 1992 Repl. Vol.), Art. 27 § 645A. -7- 617 A.2d at 1073 (discussing Md. Code (1957, 1992 R epl. Vol.), Art. 27, § 645A ). Instead, the majority assumed that the allegation of error was waived. Applying §645A , the majority held that McElroy had failed to rebut the presumption that he had kn owingly and intelligently waived the allegation and that McElroy also failed to prove any special circumstances that might excuse waive r. Id. at 149, 617 A.2d at 1074-75. The dissent, however, did consider the issue and d etermined that becaus e the Gen eral Assem bly had not state d waiver explicitly applied w hen an ap plication for leave to appeal a conviction and sentence is not filed, as it had for direct appeals, the General Assembly must not have intended the waiver provision to apply when an application for leave to appeal is never filed. The footnote reads as follows: Unless § 645A requires the filing of an application for leave to appeal to preserve an error alleged to have oc curred in the proceedin gs pursuant to which the application is required, the petitioner McElroy, who did not file such an application, cannot be said to have waived th e allegations o f error prese ntly before the Court. I believe that § 645A does not so require . I reach this conclusion by application of the ordinary rules of statutory construction. Those rules require us to look no further than to the language the Legislature used to convey the meaning it wished the statute to be interpreted to have. When those words are clear and unambiguous, ordinarily we need n ot go any further, although, in the interest of completeness, we may look at the purpose of the statute and compare the result obtained by use of the plain language with the purpose of the statute. We are also to give effect to the entire statute, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Finally, we seek to give the statute a reasonab le interpretation, not one that is illogical or -8- incom patible w ith com mon se nse. When these ru les of statutory construction are applied, it is clear that filing an application for leave to appeal, in which is included any and all allegations of error a defendant may have, is not a condition precedent to seeking post conviction relief. Section 645A(c)(1) makes clear tha t, unlike in the case of direct appeal, a defendant does not waive an allegation of error that could have been raised by way of application for leave to appeal s imply by n ot filing such an application. That section provides: For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could hav e made, b ut intelligently and knowin gly failed to make, such allegation before trial, at trial, on direct ap peal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceedin g actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted b y said petitioner, unless the f ailure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner. (Emp hasis added). Section 645A(c )(2), largely tracking the language of 645A(c)(1), is of similar effec t. This differe nce in treatment of direct appeals an d application s for leave to appeal clea rly indicates that the Legislature intended that the presumption apply only in the case of direct appeals. To construe the statute any other wa y requires that language sim ilar to that used in connection with direct appeals be added to the provision pertaining to applications for leave to appeal. -9- Moreove r, § 645A(c)(1) and (2) were amended in 1988 to be consiste nt with leg islation e nacted in 1983 , see Ch. 295, Acts of 1983, which a dded sub section (e) to Maryland Code (1980, 1983 Repl. Vol.) § 12-302 of the Courts & Judicial Proceedings Article, and made ju dgments entered on guilty pleas subje ct to review only on applic ation for leav e to appea l. See also Ch. 726, A cts of 1988 , the pream ble to which provides: FOR the purpose of clarifying that, if a person fails under certain circumstances to allege an error in an application fo r leave to ap peal a certain conviction, the allegation is deemed to be waived for the purposes of a post conviction proceeding; clarifying a certain presumption relating to failure to make a certain allegation of error; and generally relating to waiver of allegations of error in a certain ap peal. When the amendment was effected, the parenthetical condition pertaining to direct a ppeals w as alread y in the Code; nevertheless, the Legislature chose not to include such language with respect to the application for leave to appeal provision. Because the provision pertaining to direct appeals has been interpreted to mean that failure to raise an issue on direct appeal constitutes a waiver, whether or not a direct appeal was taken, and the Legislature is presumed to have had knowledge of that interpretation when it ad ded the lan guage pe rtaining to applications for leave to appeal, it must have intended a different result in those cases invo lving applic ations for lea ve to appeal. Thus, the history of that provision also contradicts the holdin g of the interme diate ap pellate c ourt. Id. at 156-58 n.5, 617 A.2d at 1078-79 n.5 (Bell and Chasanow, JJ., dissenting) (some internal citations omitted, first emphasis adde d). I agree with Chief Judge Bell and Judge Chasanow, and would hold that a person who does not f ile an applica tion for leav e to appea l a guilty plea does not waive the right to file -10- a writ of error coram nobis. The re are ma ny cas es w here a def endant, a fter p lead ing g uilty, is satisfied with the disposition in the case and therefore, has no reason or incentive to set aside the plea. If significant collateral consequences of the conviction and sentence that were unforseen by the defendant at the time of the plea bargain arise after the defendant is no longer incarcerated or on paro le, and the de fendant is th ereby ineligible to file a petition for post-conviction relief, he or she should be afforded the opportunity to petition for a writ of error co ram no bis. LACHES It appears to be the common law rule that there was no time limitation within which to file a petition for a writ of coram nobis, e xcept p erhaps laches. State v. R omer o, 415 P.2d 837, 840 (N.M . 1966) (citing James W .M. Moore & Elizab eth B.A . Roge rs, Federal Relief From Civil Judg ments, 55 Y ALE L. J. 623, 674 (1946); State v. Huffman, P.2d 831, 852 (O r. 1956)). See also Morgan, 346 U.S. at 507, 74 S. Ct. at 250 (coram nobis petition allowed without limitation of time ). Nonetheless, the right to file for coram nobis relief is not unlimited. See discussion supra. Just as the Skok Court noted that basic principles of waiver to apply to the inquiry at hand, this case prompts the consideration of laches as a limitation on the s cope o f the rig ht to peti tion for a writ o f error c oram n obis. In Maryland, the essential elements of the doctrine of laches are inexcusable delay and prejudice to the op posing party. Liddy v. Lamone, 398 Md. 233, 243-44, 919 A.2d 1276, -11- 1283 (2007); Ross v. Board Of Elections, 387 Md. 649, 668-70, 876 A.2d 692, 703-04 (2005); Buxton v. Buxton, 363 Md. 634, 645-46, 7 70 A.2d 152, 158 -59 (2001 ); Parker v. Board Of Elec. Sup., 230 M d. 126, 1 30, 186 A.2d 1 95, 197 (1962 ). Several federal courts of appeal hav e applied th e doctrine o f equitable la ches to petitions for po st-conv iction re lief. See, e.g., Telink v. United States, 24 F.3d 42 (9th C ir. 1994) (holding that the district court did not abuse its discretion in applying laches after a five year delay in filing a writ of coram nobis); Oliver v. United States, 961 F.2d 1339 (7th Cir. 1992) (holding doctrine of laches supported the d enial of a § 2255 m otion when there was an unreasonable delay of seventeen years); United States v. Darne ll, 716 F.2d 479 (7th Cir. 1983) (holding the doctrine of laches app licable to petitions for coram nobis relief and applying it to bar claims of in effective a ssistance of counsel an d involun tary guilty plea after a twenty-year delay). The courts base their reasoning in language from United States v. Morgan, emphas izing the pu blic policy goal of finality of judgments and by noting that the United States Supreme Court limited the application of coram nobis to cases where sound reasons existed for failure to seek earlier approp riate relie f. Darnell v. United States, 716 F.2d 480-81; see also Telink v. United States, 24 F.3d 47-48; cf. Foon t v. Unite d States , 93 F.3d 76, 80 (2nd Cir. 1996) (holding that language in Morgan v. United States requiring sound reasons for delay does not amount to application of the doctrine of laches but only requires the consideration of reasons surrounding petitioner s delay, not prejudice to the government). -12- The factual circumstances of Oliver v. United States illustrate both the necessity and the utility of the doctrine of laches in assessing the appropriateness of post-conviction relief. In that case, O liver pled gu ilty to two related f ederal ban k charges in 1973. Oliver v. United States, 961 F.2d 1341 (7th Cir. 1992). At the time of the proceedings, Oliver had not yet begun to serve the sentence for the federal charges because he was serving a life sentence imposed by the Sta te of Ind iana. Id. at 1341 . Fourte en years la ter, in 1987, Oliver filed a motion for records of proceedings, seeking a transcript of his plea and sentencing. The district court denied the motion and informed Oliver that he first needed to file a § 2255 motion pursuant to 18 U.S.C . § 3006A , in order to get a co py of the transcrip ts. Id. Three years passed before Oliver filed the § 2255 motion, alleging that during his guilty plea he was not advised o f his right to confront his accusers or of h is right ag ainst self incrimin ation. Id. The district court found that the transcripts were no longer available because they could not be located and the lon g delay in filing meant the routine date of destruction of United States Attorn ey s notes had pa ssed. Id. The district court denied the § 2255 motion, finding procedural defects and that the doctrine of laches bar red Oliver s cla im. Oliver, 961 F.2d 1341, 1341. The United States Court of Appeals for the Seventh Circuit upheld the application of laches, holding that the district court was justified in findin g that Oliv er s sevente en-year delay in br inging his section 2255 action prejudiced the government in its ability to respond to the merits of Oliver s allegations and that the district court was also justified in finding Oliver s delay -13- unreasonable. Id. at 1342. The Seventh Circuit s application of laches in this case resulted in an outcome that took into account the importance of maintaining an available avenue of post-conv iction challenge to constitutionally infirm guilty pleas and the reality that the government may often be unable to adequa tely defend against such cha llenges when they are prec eded by lon g delay. In Telink, Inc. v. United States, 24 F.3d 42 (9th C ir. 1994), 3 the United States Co urt of App eals for the N inth Circuit sim ilarly applied the doctrine of laches in a writ of coram nobis action. Discussing laches, the court stated : Because a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subjec t to a spe cific stat ute of lim itations. R ather, the petition is subject to the equitable doctrine of laches. Unlike a limitations period, wh ich bars an a ction strictly by time lapse, laches bars a claim if unreaso nable delay causes prejudice to the defendant. [L]aches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced an inequity founded upon some change in the condition or relations of the p roperty or parties. Id. at 45 (internal citations omitted). The court held that the time available to file a coram nobis petition should be based on a flexible, equitable time limitation, Id. at 47 (quoting Darnell, 716 F.2d at 480), and that a district court could at any time apply the doctrine of laches to bar a cla im. Id. at 47. 3 Although the court in Telink notes that in that federal circuit, a writ of error coram nobis is a step in the original criminal proceeding, and in Maryland, a writ of error coram nobis is in the nature of a civil proceeding, the difference is immaterial as to whether the doctrine of laches applies to coram nobis. -14- Laches is a valuable tool for the trial judge in evaluating a petition for coram nobis. As in Oliver, it can preven t the govern ment from being unf airly prejudiced by evidentiary destruction resulting from long, une xcused delay. Unlike w aiver, it allows the trial c ourt to consider both the prejudice to the government and the reasons for delay. In balancing the two factors, the trial cou rt has more flexibility to allow writs of co ram nob is to proceed in those cases where fairness demands an opportunity to be heard on the matter of p ostconviction relief. In erroneously applying the waiver contained in § 7-106(b)(1)(i) of the Criminal Procedure Article of the Maryland Code, the trial judge did not consider the reasons for delay or the merits of the claim that the p lea was co nstitutionally invalid . I would remand this case to pe rmit petitioner to proceed in the Circuit Court and to demonstrate that he can satisfy all the elements, including sound rea sons for d elay, to justify coram n obis relief. Voluntary and Intelligent Guilty Plea As to the merits of Petitioner claim, if the Circuit Court finds that laches does not bar the coram no bis action, I w ould hold that the plea was involuntary and that he should be permitted to withdraw the plea because he was not informed of the offense to which he was pleading guilty The Circuit Court found that there was no requirement to inform petitioner of the maxim um poss ible sentenc e for the ch arges he p led to , but dete rmined tha t his guilty plea was constitutionally infirm because he was not advised of the nature of th e charge to -15- which he w as pleadi ng guilty. The Co urt of Spe cial Appe als agreed w ith the Circuit Court that petitioner need not be informed of the maximum penalty he faced, bu t disagreed that petitioner s plea was constitutionally infirm because the statement of facts read into the record during the guilty plea hearing was sufficient to inform Petitioner of the nature of the charge and the elements of the crime to which he pled guilty. I disagree with the Court of Special Appeals and would hold that petitioner s plea was constitutionally infirm because he was not advised of the nature of the charge to which he was pleading guilty and because he was not informed of the maximum penalty he faced as a result of his guilty plea. It is fundamental that to be valid, a guilty plea must be entered voluntarily and intel ligen tly. Methen y v. State, 359 Md. 576, 601 , 755 A.2d 1088, 11 02 (2000 ); Yoswick v. State, 347 Md. 228, 239, 700 A.2 d 251, 25 6 (1997); State v. Priet, 289 Md. 267, 274-75, 424 A.2d 349, 353 (1981); Davis v. Sta te, 278 Md. 103 , 118, 361 A.2d 1 13, 121 (1976). Maryland Rule 4-24 2 sets forth the procedure for the acceptance of a guilty plea, requiring either the court or c ounsel to as k the defe ndant que stions conc erning the v oluntariness of his plea on the record in open court. In 1992, at the time of petitioner s guilty plea proceeding, Rule 4-242 (c) provided as follows: (c) Plea o f guilty . The court may ac cept a plea of gu ilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State's Atto rney, the a ttorn ey for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. The court may accept the plea of guilty even though the defendant -16- does not admit g uilt. Upon re fusal to accept a plea of guilty, the court sh all enter a plea of not gui lty. Md. Rule 4-2 42 (1992). 4 A defendant must be informed of the nature of the charge to which he or she is 4 In 2001, in response to changes in federal immigration laws, Rule 4-242 was amended to as it cu rrently pro vides. See Skok, 361 Md. at 77, 760 A.2d at 661. The amended Rule requires the court, before accepting a guilty or nolo contendere p lea, to inform the defendant that if he or she is not a United States citizen, he or she may face deportation, detention, or ineligibility for citizenship. Maryland Rule 4-242 (c) and (e) states as follows: (c) Plea of guilty. The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the c ourt, the S tate's Atto rney, the attorney for the defendant, or any combination thereof, that (1) the de fendant is p leading vo luntarily, with understanding of the nature of the charge and the consequences of the plea; and (2) there is a factual basis for the plea. In addition, before accepting the plea, the court sh all comply w ith section (e) of th is Rule . The court may accept the p lea of guilty even though the defendant does not admit g uilt. Upon re fusal to accept a plea of guilty, the c ourt shall ente r a plea of not g uilty. *** (e) Collateral Consequences of a Plea of Guilty or Nolo Contendere. Before the court accepts a plea of guilty or n olo contendere, the c ourt, the S tate's Attorney, the attorney for the defenda nt, or any comb ination thereo f shall advise the defendant (1) that b y entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship and (2) that the defendant should consult with defense counsel if the defendant is represented and needs additional information concerning the potential consequences of the plea. The omission of advice concerning the collateral consequences of a plea does not itself mand ate that th e plea b e decla red inv alid. -17- pleading. A proff er of facts b y the State that includes conduct a mounting to a robbery is insufficien t to advise a d efendan t of the natu re of the ch arge to which he or she is entering a guilt plea. Even though a robbery in fact occurred, a defendant could have been entering a plea to the lesse r includ ed off enses o f either th eft or as sault. Certainl y, the requirement that the defendant have a basic understanding of the charge to which he or she is pleading guilty requires the trial court to inform the individual of the charge to which he or she is pleading guilty. Because a guilty plea is an admission of conduct that constitutes all the elements of a formal criminal charge, Metheny, 359 Md. at 599, 755 A.2d at 1101 (quoting Sutton v. State, 289 Md. 359, 364, 424 A.2d 755, 758 (1981)), and cannot be voluntary unless the individual possesses an understanding of the charge to which h e or she is ple ading guilty, it cannot be said that a guilty plea is entered voluntarily and intelligen tly if the individual does not know to what charge he is pleading guilty. In the case sub judice, a review of the transcript from the guilty plea hearing confirms that petitioner was not informed that he was pleading guilty to robbery with a deadly weapon; the court did not, nor did his counsel, refer to the count of the indictme nt nor to the s pecific offense to which he was pleading guilty. The voir dire in the courtroom does not indicate that the court or counsel advised petitioner of the charge to which he was entering a guilty plea. The State contends, however, that petitioner was charged only with robbery with a -18- deadly weapon, and that the statement of facts read d uring the guilty plea proceeding was sufficient to inform p etitioner of the nature of c harge of ro bbery with a d eadly weap on. Both argumen ts are misplaced. The docket entries reflect that petitioner was charged with robbery with a deadly weapon, assault with intent to commit robbery, carrying a con cealed dea dly weapon, and openly carrying a deadly weapon with the intent to injure, and that all of the charges were disposed of at the 1992 guilty plea hearing. Moreover, the statement of facts read into the record during the guilty plea proceeding was not sufficient to advise petitioner of the nature of the charge to which he was pleading guilty. The statement of facts specified only that on September 20, 1992, petitioner approached two people in the 1700 block of West North Avenue in Baltimore City, produced a pellet gun, demanded money, and received $54.00 collectively from the two individuals. It is not evident from the statement of facts tha t petitioner w as pleading guilty to robbery w ith a deadly weapon as opposed to any of the other crimes for which he was charged or the lesser included charges such as theft or assault. Rule 4-242 (c) required the trial court to ensure that petitioner understood the nature of the charge to which he w as pleading guilty before accepting his plea. The court did not do so, therefore petitioner s plea was con stitutionally infirm. Petitioner asserts also that his guilty plea was not entered voluntarily and intelligently because he was not informed of one of the consequences of his plea, the statutory maximum penalty for the charge to which he is pleading. Both the Circuit Court and the Court of -19- Special Appea ls rejected petitioner s argument and found that the trial court was not required to advise him of the statutory maximum penalty he faced. The State s argument is based on the fact that petitioner s sentence was m utually agreed upon, and there fore, the statutory maximum is irrelevant. Because I would hold that petitioner w as not adeq uately advised of the nature of the charge to which he was pleading guilty, I would not address this second argumen t. I would remand this case to permit petitioner to proceed in the Circuit Court and to demonstrate that he can satisfy all the elements to justify coram nobis relief. Chief Judge Bell and Judge Greene have authorized me to state that they join in the views expressed in this dissenting opinion. -20-
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