             REPORTED


IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND

               No. 2914

      SEPTEMBER TERM, 2015



        MICHAEL VAUGHN


                  v.

      STATE OF MARYLAND


   Krauser, C. J.,
   Berger,
   Salmon, James P.,
    (Senior Judge, Specially Assigned)

                       JJ.


        Opinion by Salmon, J.



   Filed: April 26, 2017
       The Maryland Court of Appeals, in Skok v. State, 361 Md. 52 (2000), made a

significant change in the Maryland common law in regards to the circumstances under

which a convict could overturn his or her conviction by filing a writ of error coram nobis.

Id. at 70, 77. Relying on the reasoning set forth in United States v. Morgan, 346 U.S. 502

(1954) (announcing law to be applied in federal courts), the Skok Court held that a change

in the common law governing coram nobis relief was justified due to “contemporary

conditions and public policy.” Id. at 77. The Court, 361 Md. at 78-79, listed five

conditions a defendant must meet in order to obtain coram nobis relief. One of those

conditions was that a “coram nobis petitioner must be suffering or facing significant

collateral consequences from the conviction.” Id. at 79.

       In the case sub judice, the appellant, Michael Vaughn, pled guilty in 2004, in the

Circuit Court for Baltimore City, to a third-degree sex offense pursuant to an agreement

with the prosecutor and the circuit court judge that accepted the plea. Before he pled

guilty, Vaughn was told, inter alia, that if the plea was accepted he would be required to

register as a sex offender “as required by law.”

       The circuit court sentenced Vaughn to five years’ imprisonment, all suspended in

favor of three years’ probation. As promised, Vaughn was ordered to register as a sex

offender and, as a condition of probation he was required to receive sex counseling and to

stay away from the victim.

       Mr. Vaughn took no action for over eleven years. He then filed a petition for a

writ of error coram nobis. The collateral consequence he relies upon in support of his
petition is that he has been required to register as a sex offender. The issue that we are

called upon to resolve is whether the aforementioned “collateral consequences” is

sufficient to meet one of the five conditions required for coram nobis relief.

       We shall hold that such a “collateral consequence” is not sufficient to allow coram

nobis relief because, as Skok made clear, the reason for changing the common law was to

give a possible avenue of relief to criminal defendants who could allege significant

collateral consequences arising from the conviction that were, from the defendant’s point

of view, unexpected at the time the guilty verdict was entered. Id. at 77.

                                         I.
                                    BACKGROUND

       Mr. Vaughn was 21 years old in July 2003 and lived at 2416 Marbourne Avenue,

Apt. 3-C, in Baltimore City. The victim of the crime to which Mr. Vaughn pleaded guilty

was “MJ”, who, in 2003, was twelve years old. Mr. Vaughn knew her age at all times

here relevant.

       Police arrived at Mr. Vaughn’s apartment on July 21, 2003, while Mr. Vaughn and

the victim were still present. MJ told an investigating police officer that she had had

vaginal intercourse with Mr. Vaughn on the evening of July 20 and again in the morning

hours of July 21, 2003. As a result of MJ’s allegations, Mr. Vaughn was charged in the

Circuit Court for Baltimore City with second-degree rape, third-degree sex offense,

fourth-degree sex offense and second-degree assault.




                                             2
       On March 15, 2004, Mr. Vaughn appeared in the Circuit Court for Baltimore City.

At the commencement of the proceedings, the prosecutor placed on the record the plea

agreement that the State had entered into with the defendant and his counsel, viz.:

       [T]he agreement would be that the [d]efendant plead guilty to a third-
       degree sex offense, receive a five year – a sentence of five years suspended,
       three years’ probation, stay away from the victim, [MJ]. Register as a sex
       offender as required by law. Have sex offender counseling. And that’s it.

       Appellant’s counsel then explained to Mr. Vaughn some of the rights he was

giving up by entering a guilty plea. Defense counsel did not, however, explain to Mr.

Vaughn, on the record, what the State would need to prove in order to convict him of a

third-degree sex offense.

       After the factual predicate for the guilty plea was placed on the record, the circuit

court, on the same day that the plea was accepted, sentenced appellant in accordance with

the plea agreement. As mentioned, as part of that agreement, appellant was required to

register as a sex offender. In 2004, a person convicted of a third-degree sex offense was

required to register as a sex offender for life. The same is true presently.

       On August 7, 2015, Mr. Vaughn filed a writ of error coram nobis. In his petition

he did not allege that as a consequence of his conviction he was suffering any significant

collateral consequences arising from his conviction. He did, however, claim that the

evidence that the State proffered at the time of his guilty plea, was insufficient to support

a conviction of third-degree sexual offense. More precisely, according to Mr. Vaughn,

the proffered facts did not show that the victim and Mr. Vaughn had “sexual contact” as

defined in Md. Code (2002), Criminal Law Article § 3-301(f)(1) because penile
                                              3
penetration does not come within that definition. For that proposition, he cited Bayne v.

State, 98 Md. App. 149, 159 (1993). Mr. Vaughn argued, in effect, that even though the

facts proffered by the State would have been sufficient to prove a second-degree sexual

offense, those facts were insufficient to prove that he was guilty of the less serious charge

of third-degree sexual offense.

       In his petition, Mr. Vaughn also alleged that the guilty plea was deficient because

“the voir dire did not establish that [the plea] was knowingly, voluntarily and intelligently

entered” inasmuch as no one explained to him, on the record, the specific elements that

the State needed to prove to obtain a third-degree sexual offense conviction.

       In its response to the petition, the State stressed that Mr. Vaughn had failed to

allege that he had suffered significant collateral consequences as a result of his

conviction. The State also argued that the plea colloquy was sufficient to show that

appellant entered the plea knowingly, voluntary, and intelligently.        In regard to the

sufficiency of the factual predicate for a plea, the State pointed out that the State had

proffered that just before each incident of vaginal intercourse, the victim and the

defendant kissed. According to the State, kissing amounted to “sexual contact,” as

defined by the section of the statute relied upon by Mr. Vaughn.

       The State concluded its memorandum by stating, accurately, that Mr. Vaughn

received a great benefit from the plea agreement because he was originally charged, and

the State could have easily proven, that appellant was guilty of a second-degree sexual



                                             4
offense inasmuch as the victim was under the age of fourteen and the defendant was four

or more years older than she was at the time the two engaged in vaginal intercourse.

       A hearing on the petition for coram nobis relief was set for October 29, 2015. On

October 23, 2015, Vaughn’s counsel filed a reply memorandum in which his counsel

asserted that as a result of the third-degree sexual offense conviction he “has been

ordered to register as a sex offender.” According to the reply memorandum, the

registration requirement “has an enormous impact on his life.” Counsel did not say,

however, what that impact may have been and no affidavit supported the “impact on his

life” allegation. See Md. Rule 2-311(d). 1

       At the October 29, 2015 hearing, the motions judge treated the assertions about

collateral consequences made in Mr. Vaughn’s response to the State’s memorandum as if

the allegations were set forth in the petition for coram nobis relief. After hearing oral

argument, 2 the circuit court, on January 19, 2016, filed a seven-page opinion in which the

court concluded that Mr. Vaughn was not entitled to coram nobis relief. The court said:


       1
           Md. Rule 2-311(d) reads:

                Affidavit. A motion or a response to a motion that is based on
                facts not contained in the record shall be supported by
                affidavit and accompanied by any papers on which it is based.
       2
         At the October 29, 2015 hearing, Mr. Vaughn’s counsel, when questioned about
the fact that Mr. Vaughn knew, in 2004 when he entered his guilty plea that he would
have to register as a sex offender, said that since 2004 the General Assembly has
“increased year after year . . . . what sex offenders have to do.”


(Continued…)
                                              5
       The record of the March 15, 2004 proceeding clearly demonstrates that the
       Petitioner was advised that registration as a sex offender was a requirement.
       . . . Further, Petitioner has failed to establish how his registration as a sex
       offender is a significant collateral consequence now, eleven years after his
       initial plea. Rather, the [c]ourt finds that the registration as a sex offender
       was a condition directly attached to the plea and it is not a collateral
       consequence of the plea.

                                      II.
                                  DISCUSSION

       The Court of Appeals gave a full explanation in Skok as to why public policy

required that there be a change in the common law concerning the circumstances that

would justify a court granting a petition for a writ of error coram nobis. The Court said:

       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 consequence of
       the conviction, 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


(…continued)

Counsel’s argument continued:

       And so Mr. Vaughn could not have known in 2003, [sic] for instance, that
       he would have to give up all of his Internet identifiers. He would not have
       known that he can’t go anywhere near a daycare center. Because none of
       that existed at the time. So now, 11 years of this, I think shows how serious
       he is.

Defense counsel did not, however, argue that any of the post 2004 changes had any
significant effect on him.


                                             6
      challenge the conviction by a petition for a writ of habeas corpus or a
      petition under the Post-Conviction Procedure Act.

             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 county. 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. Because of this, Maryland Rule 4-242 was recently amended
      by adding the following provision:

          “(e) Collateral consequences of a plea of guilty or Nolo
             Contendere. Before the court accepts a plea of guilty or nolo
             contendere, the court, the State’s Attorney, the attorney for the
             defendant, or any combination thereof 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 of advice concerning the collateral
             consequences of a plea does not itself mandate that the plea be
             declared invalid.”

            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
            significant collateral consequence of his or her conviction, and
            who can legitimately challenge the conviction on
            constitutional or fundamental grounds. Such person should be
            able to file a motion for coram nobis relief regardless of
            whether the alleged infirmity in the conviction is considered
            an error of fact or an error of law.

361 Md. at 77-78 (footnote omitted) (emphasis added).

      As can be seen, Mr. Vaughn did not show that he was among that group of

criminal defendants who, after pleading guilty, later learns of a substantial collateral

                                             7
consequence of the conviction. He knew that he would have to register as a sexual

offender “as required by law” on the very day he entered his guilty plea. Therefore, Mr.

Vaughn, unlike Mr. Skok, had no valid reason to forego an appeal.

       Appellant has cited no case, and we know of none, where any appellate court in

this State has held that a petitioner for coram nobis relief meets the “significant collateral

consequence” requirement by pointing to a consequence of the guilty plea that the

petitioner knew about on the day he pled guilty. In fact, in every reported Maryland case

in which coram nobis relief has been allowed since Skok was decided, the petitioner was

able to point to a collateral consequence of the guilty plea that the petitioner did not know

about on the day the guilty plea was entered. 3

       Finally, because appellant knew about the requirement to register as a sex offender

when he pled guilty, grant of coram nobis relief is not required to achieve justice. In that

regard, what we said in Coleman v. State, 219 Md. App. 339, 353-54 (2014) is relevant:

            [Even] assuming that a petitioner has met the prerequisites for coram
       nobis relief, we are not aware of any Maryland decision mandating that
       relief be granted in the absence of “circumstances compelling such action to
       achieve justice.” As the Supreme Court stated in United States v. Denedo,
       556 U.S. 904. 916. 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009), “judgment
       finality is not to be lightly cast aside; and courts must be cautious so that
       the extraordinary remedy of coram nobis issues only in extreme cases.”
       See also Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140
       L.Ed.2d 828 (1998) (“‘the concern with the finality served by the limitation
       on collateral attack has special force with respect to convictions based on

       3
        Nothing in this opinion should be interpreted as standing for the proposition that
being required to register as a sex offender is not a serious collateral consequence of a
conviction.


                                              8
       guilty pleas’”) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99
       S.Ct. 2085, 60 L.Ed.2d 634 (1979)); Holmes, supra, 401 Md. at 473, 932
       A.2d 698 (noting the “limited nature” of the “extraordinary” writ of error
       coram nobis).

                                         III.
                                     CONCLUSION

       In Maryland, a petitioner must prove five conditions in order to be entitled to

coram nobis relief. One of those conditions is that the petitioner is suffering or facing

significant collateral consequences from the conviction. To prove that last mentioned

condition, petitioner must show that the “collateral consequences” is one that he or she

did not know about at the time the guilty plea was entered. 4



                                                 JUDGMENT AFFIRMED; COSTS
                                                 TO BE PAID BY APPELLANT.




4
 We recognize that in Skok, 361 Md. at 79, the Court said that “basic principles of waiver
are applicable in coram nobis proceedings” and that the same legal principles applicable
under the Maryland Post Conviction Act now set forth in Md. Code (2008 Repl. Vol.)
Criminal Procedure Article § 7-106(b) and (c) apply to coram nobis actions. If the circuit
court judge in this case had chosen to do so, appellant’s petition could also have been
dismissed on grounds of waiver.


                                             9
