Travis Harding v. State of Maryland
Case No. 2472 September Term, 2014

                                       HEADNOTE


CRIMINAL PROCEDURE – GUILTY PLEAS – APPLICATIONS FOR LEAVE
TO APPEAL – ISSUES THAT MAY BE ARGUED ON APPEAL. Although
Maryland Rule 8-204(b)(3) requires that an application for leave to appeal “shall contain
a concise statement of the reasons why the judgment should be reversed or modified and
shall specify the errors allegedly committed by the lower court,” nothing in Rule 8-204
states that, if an application is granted, only the points specified in the application may be
argued on appeal. Because Rule 8-204(g)(1) states that, if the Court of Special Appeals
grants an application and orders further proceedings in that Court, those proceedings
“shall be conducted . . . as if the order granting leave to appeal were a notice of appeal
filed pursuant to Rule 8-202,” the applicant is not restricted to the errors alleged in the
application.

CRIMINAL PROCEDURE – GUILTY PLEAS – WITHDRAWAL OF PLEA –
RIGHT TO HEARING. Maryland Rule 4-242(h) provides that a defendant may file a
motion to withdraw a guilty plea upon certain grounds within ten days after sentencing.
The rule further mandates: “The court shall hold a hearing on any timely motion to
withdraw a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere.”
Circuit Court for Baltimore County
Case No.: 03-K-14-002783                            REPORTED

                                       IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND

                                                      No. 2472

                                               September Term, 2014

                                     ______________________________________


                                                TRAVIS HARDING

                                                         v.

                                             STATE OF MARYLAND

                                     ______________________________________

                                          Meredith,
                                          Leahy,
                                          Sharer, J. Frederick
                                            (Senior Judge, Specially Assigned),

                                                       JJ.
                                     ______________________________________

                                              Opinion by Meredith, J.
                                     ______________________________________

                                          Filed: December 21, 2017
       Travis Harding, appellant, was charged with two counts of second-degree assault.

On the date set for trial in the Circuit Court for Baltimore County, Harding entered an

Alford plea to one count of second-degree assault.1 He was sentenced to incarceration for

a term of five years, with all but time served suspended.           Within ten days after

sentencing, Harding filed a motion to withdraw his guilty plea and motion for new trial,

both of which were summarily denied without a hearing. Thereafter, Harding filed an

application for leave to appeal. We granted leave to appeal, and transferred the case to

the regular docket.

                              QUESTIONS PRESENTED

       Harding presents the following three questions for our consideration:

       I. Did the trial court err in accepting Harding’s plea of guilty to second-
       degree assault where the record shows that neither the court, the prosecutor,
       nor defense counsel explained on the record the elements of second-degree
       assault and neither Harding nor defense counsel represented that Harding
       had been informed by counsel of the elements of second-degree assault?

       II. Did the trial court err in denying Harding’s motion to withdraw the
       guilty plea and motion for new trial?

       III. Did the trial court err in failing either to order a competency evaluation
       or conduct an inquiry of Harding to determine whether he was competent to
       plead guilty before accepting his guilty plea?




       1
         An “Alford plea,” which derives its name from North Carolina v. Alford, 400
U.S. 25 (1970), “is ‘a guilty plea containing a protestation of innocence.’ Marshall v.
State, 346 Md. 186, 189 n. 2, 695 A.2d 184, 185 n. 2 (1997), citing Pennington v. State,
308 Md. 727, 728 n. 1, 521 A.2d 1216, 1216 n. 1 (1987).” Silver v. State, 420 Md. 415,
424 n.4 (2011).
       Because the circuit court erred by ruling on Harding’s motion to withdraw his

guilty plea without granting him the hearing that is required by Maryland Rule 4-242(h),

we shall remand this case for further proceedings.

                                FACTUAL BACKGROUND

       On the morning the case was scheduled for trial, counsel for Harding told the trial

judge that Harding was refusing to speak to him. The trial judge informed Harding that

he had been “charged with two counts of second-degree assault under Maryland law,”

and asked, among other things, if he was unhappy with his counsel or wished to proceed

to trial with counsel. Harding’s initial response was: “I want a postponement. . . . I like it

in jail. . . . I do good in jail. . . . I do good with the people I’m with right now.”

       But Harding subsequently confirmed that he did not wish to fire defense counsel,

and he agreed to speak to defense counsel regarding the State’s offer to resolve both

second-degree assault charges by “recommending a disposition of some sentence

suspending all but time served,” which would result in Harding’s prompt release from the

county detention center.

       After a recess to allow for that discussion, the parties returned to the courtroom

and advised the judge that Harding wished to enter “a plea of guilt [sic] by way of an

Alford plea[.]” The prosecutor explained that, upon a finding that Harding was guilty of

the second-degree assault of his wife, the State would nol pros the remaining count of

second-degree assault. The State asked for “a split sentence, generally suspending all but

time served,” but also the entry of an order that Harding have no contact with the victim,

and that the file be marked as domestically related.


                                                2
          During a brief discussion at the bench with counsel, at which Harding was not

present, the trial judge asked defense counsel: “Is he okay?” Counsel replied: “I think

so. I think he’s competent.” But the prosecutor then noted that he had observed some

unusual conduct on Harding’s part during a hearing on a protective order: “[Harding]

said something like, ‘If I can’t see my kids, I just want to die.’ . . . They said they had

him on suicide watch.”

          Thereafter, the trial judge questioned Harding in open court, and confirmed that he

was 40 years old, had some college education, and had served in the military. The judge

reviewed the nature of an Alford plea, which the judge described as not admitting guilt

but conceding that “there’s sufficient evidence if believed that can be adduced by the

State that would permit somebody to find me guilty.” The judge described a jury trial

and the requirement of a unanimous verdict. And the court confirmed that no one had

made any threats or promises to induce Harding to agree to enter a plea. The court then

stated:

          THE COURT: All right. I’m gonna find based on my review of the form
          that was filled out and initialed by Mr. Harding and signed by him with his
          counsel, couple[d] with my colloquy with him that his waivers are free,
          knowing, voluntary and intelligent. May I hear the statement of facts,
          please?

          In support of the plea, the prosecutor presented the following statement of facts:

          [PROSECUTOR]:         [On] April 14, 2014, Baltimore County Police
          responded to [a residence in] Baltimore County. The Defendant, Travis
          Harding, who is the Defendant here, was attempting [to] file a missing
          person’s report [regarding] his wife, [Ms. T.], and their three children. The
          officer was able to contact Ms. T[.] at this time[;] she was not a missing
          person. The Defendant didn’t know where she was.



                                                3
       Officer Flynn spoke with her, Your Honor. She indicated that she’s
afraid of him, that he had made threats against her. He drinks heavily and
has substance abuse which makes it very difficult, indicating that he
becomes violent when he becomes intoxicated.

       She indicated that on April 12, 2014, she had taken her dog for a
walk, heard the Defendant yelling obscenities at their [child], heard
Defendant yelling at [their child], he hated him and couldn’t stand him.
[That child] was frightened and hid in the closet with [another child] . . . .

        [Ms. T.] advised shortly thereafter the Defendant threw a large
plastic popcorn container at their [child], striking [the child] in the face and
knocking [the child off a] chair. She left the location with the children[,]
fearing for their safety after that incident. There were no signs of physical
injury on the child.

        [Ms. T.] advised, your Honor, March 24th – she indicates to me that
it’s actually March 25th. It states in the police report March 24th – but that
when she came home from work at 10:30 in the morning, he, the
Defendant, accused her of infidelity and not being at work. She went in the
bathroom to take a shower, he followed her in there. He pushed her into
the bathroom wall, pressed his forearm into her throat, strangling her.

       She advised that he said to her, “Do you think this is a game?” He
applied more pressure to her throat saying, “Look at me, don’t look away.
You think I’m joking? I can kill you and will kill you.” She said she
complied to look at him and he eased the pressure that he had placed on her
throat at that time. [Ms. T.] said the Defendant said he would kill her if she
ever left with the kids, and that he would find her and take the kids. She
said during the strangulation her vision began to fade, she could not breathe
and believed if she did not submit to his demand she was going to be killed
and her children’s lives in danger.

        Your Honor, all events did occur in Baltimore County. If called to
testify, witnesses would identify this Defendant as the individual who did
commit the second-degree assault of his wife, [Ms. T.], and that would be
the statement in support of the plea.

[DEFENSE COUNSEL]: Your Honor, the only addition would be that
there was no 911 call or other report made after this strangling incident.




                                       4
       [PROSECUTOR]: That is correct, your Honor. The victim who’s here,
       Ms. T[.], advi[s]es that that was not reported prior to the incident with their
       [child].

       THE COURT: [Th]ere’s a factual basis for the plea, and I find the
       Defendant guilty of second-degree assault.

       The court imposed a sentence of five years, all suspended but time already served,

with three years’ probation, the first year supervised. The court also imposed conditions

limiting contact with Ms. T.

       Within ten days after Harding was sentenced, counsel for Harding filed a motion

to withdraw his guilty plea, combined with a motion for new trial. The motion asserted,

inter alia, that, as soon as Harding had been released from custody on the day of the plea,

he was admitted to Sheppard Pratt Hospital. Counsel asserted in the motion that he now

had “grave doubts regarding [Harding’s] competence to waive his trial rights and enter

into a plea agreement.” The motion asked the court to hold a hearing on the matter after

Harding was released from Sheppard Pratt. Three days later, the court stamped the

motion “Considered and DENIED,” without any hearing. An application for leave to file

this appeal followed. We granted the application and transferred the case to our regular

appeal docket.

                                      DISCUSSION

                                             I.

       Harding contends that his guilty plea to one count of second-degree assault must

be vacated for three reasons. First, he argues, there is nothing in the record that confirms

that he was advised of the elements of second-degree assault or what the State would



                                             5
have to prove to establish that offense before he entered the plea, as required by

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Second, Harding’s conduct in court at

the plea hearing (such as telling the court that he liked being in jail) should have triggered

further evaluation of his mental competency on that date. And third, the court was

required by Rule 4-242(h) to conduct a hearing on his motion to withdraw his plea, but

the court failed to do so.

       As a preliminary matter, the State asserts that the first and third contentions—

regarding the lack of advice regarding the elements of second-degree assault, and the

court’s failure to conduct a hearing on Harding’s motion to withdraw the plea—are not

properly before us because, in Harding’s application for leave to appeal, those arguments

were not expressly articulated as points he proposed to argue if we granted his

application. The State urges us to rule that Harding’s application for leave to appeal

asserted only that he had not been competent to enter into the plea agreement and waive

his right to a jury trial. As a result, the State contends, he is confined to arguing only that

claim and may not now make the additional arguments that he was not advised of the

elements of second-degree assault and that he was entitled to a hearing on his motion to

withdraw his plea. We do not agree that Harding is precluded from raising these issues.

       Although Maryland Rule 8-204(b)(3) requires that an application for leave to

appeal “shall contain a concise statement of the reasons why the judgment should be

reversed or modified and shall specify the errors allegedly committed by the lower

court,” nothing in Rule 8-204 states that, if an application is granted, only the points

specified in the application may be argued on appeal. Rule 8-204(f)(5) provides that one


                                              6
of the options this Court may exercise for disposition of an application for leave to appeal

is to “grant the application and order further proceedings in the Court of Special Appeals

in accordance with section (g) of this Rule.” That is the option we chose for disposition

of Harding’s application. We ordered that “the case is hereby transferred to the regular

appeal docket of this Court.”

       Rule 8-204(g)(1) prescribes the manner in which we will handle a case in which

we grant an application for leave to appeal pursuant to Rule 8-204(f)(5): “Further

proceedings directed under subsection (f)(5) of this Rule shall be conducted pursuant to

this Title and as if the order granting leave to appeal were a notice of appeal filed

pursuant to Rule 8-202.” (Emphasis added.) See State v. Thomas, 325 Md. 160, 175-76

(1992) (stating: “Md. Rule 8-204(g) provides that if an application for leave to appeal is

granted, further proceedings ‘shall be conducted pursuant to this Title and as if the order

granting leave to appeal were a notice of appeal filed pursuant to Rule 8-202.’”).

       Notices of appeal filed pursuant to Rule 8-202 are not required to specify the

points an appellant expects to argue on appeal, and, even if an appellant does set forth in

a notice of appeal proposed points the appellant wishes to argue, we treat that language as

surplusage and non-limiting. In Edery v. Edery, 213 Md. App. 369, 377 n.7 (2013),

Judge Deborah Eyler observed for this Court: “A notice of appeal, whether filed in the

circuit court or the orphans’ court, does not need to specify the orders appealed from, and

operates as an appeal of any order that is appealable at that time.” Accord Green v.

Brooks, 125 Md. App. 349, 363 (1999) (“It is clear that the language in appellant’s notice

of appeal does not determine what we may review.”); see also Grandison v. State, 425


                                             7
Md. 34, 52 (2012) (“We view the decision as to whether an appellate court will require

strict compliance with the terms of Rules 8-204 or 8-306 to be discretionary.”). In

Walker v. State, 161 Md. App. 253, 278 (2005), aff’d on other grounds, 391 Md. 233

(2006), we said that one of Walker’s arguments had not been preserved for our review

because it had not been raised either in the circuit court or in his application for leave to

appeal, citing Rule 8-204(b)(2). But we nevertheless exercised our discretion to review

the argument without addressing the impact of Rule 8-204(g). Id.

       Rule 8-204(f)(5) does not prohibit this Court from placing conditions or

substantive limitations on our grant of an application for leave to appeal, but our order

granting Harding’s application did not specify any limitations on the issues he could

argue in his appeal. Consequently, we conclude that Harding is not precluded from

arguing that the circuit court erred by failing to ensure that he was entering the plea “with

understanding of the nature of the charge,” and by failing to hold a hearing on his motion

to withdraw his Alford plea.

                                             II.

       As noted above, Harding contends, inter alia, that the trial court erred in denying

his motion to withdraw his guilty plea without holding a hearing. Seven days after

Harding was sentenced, defense counsel filed a single document captioned “MOTION

TO WITHDRAW GUILTY PLEA AND MOTION FOR NEW TRIAL.” In that motion,

Harding’s counsel (who had represented him at the time of the plea and sentencing)

questioned his competence to waive a trial and enter the Alford plea. Harding’s counsel

prayed that the court permit him to withdraw his guilty plea, grant him a new trial in the


                                             8
interest of justice, and grant a hearing on the motion. The court denied Harding’s motion

without a hearing.

          Motions to withdraw guilty pleas are governed by Maryland Rule 4-242(h), which

states:

                  (h) Withdrawal of Plea. At any time before sentencing, the court
          may permit a defendant to withdraw a plea of guilty, a conditional plea of
          guilty, or a plea of nolo contendere when the withdrawal serves the interest
          of justice. After the imposition of sentence, on motion of a defendant
          filed within ten days, the court may set aside the judgment and permit
          the defendant to withdraw a plea of guilty, a conditional plea of guilty,
          or a plea of nolo contendere if the defendant establishes that the provisions
          of section (c) or (e) of this Rule were not complied with or there was a
          violation of a plea agreement entered into pursuant to Rule 4-243. The
          court shall hold a hearing on any timely motion to withdraw a plea of
          guilty, a conditional plea of guilty, or a plea of nolo contendere.

(Emphasis added.)

          Harding maintains that he was entitled to withdraw his plea because the

requirements of Rule 4-242(c) were not satisfied. At the time of Harding’s plea, Rule 4-

242(c) required that, before a court could accept a plea of guilty, the court was required to

determine that “the defendant is pleading voluntarily, with understanding of the nature of

the charge and the consequences of the plea.” Harding contends that the trial court could

not have properly determined that he was pleading voluntarily and with the requisite

understanding of the consequences of the plea because the court did not confirm on the

record that he understood the elements of second-degree assault, and he was experiencing

mental health problems on the day he entered the plea.

          As a variation of its preservation argument, the State asserts that Harding’s post-

trial motion did not sufficiently apprise the trial court that he was seeking to withdraw his


                                               9
guilty plea. Additionally, relying on Dawson v. State, 172 Md. App. 633 (2007), the

State contends that the issue of whether the trial court erred in denying Harding’s motion

to withdraw his guilty plea is not properly before us because Harding failed to file a

separate notice of appeal (that is, a separate notice in addition to the application for leave

to appeal that we granted).

       As we noted above, Rule 8-204(g) provides that, if we grant an application and

transfer the case to our regular docket, that order is treated like a notice of appeal filed

pursuant to Rule 8-202. When an appellant files a timely notice of appeal, Rule 8-202

does not require the appellant to provide, at the time the notice is filed, an immutable list

of issues to be argued on appeal. Consequently, we conclude that Harding’s argument

about the circuit court’s error in failing to hold the hearing required by Rule 4-242(h) is

properly before us.

       The State concedes in its brief that, if this issue is properly before us, the circuit

court erred. The State acknowledges: “[I]f the post-trial pleading filed by Harding was

sufficient to constitute a proper motion for withdrawal of plea, the trial court, by rule, was

required to hold a hearing on Harding’s timely filed motion to withdraw his guilty plea.”

The State agrees that, if we reach this issue, a remand is required. The State’s brief

concedes:    “Therefore, if this issue is properly before this Court and this Court

determines that Harding’s motion was sufficient to invoke the requirements of Rule 4-

242(h), then this case should be remanded for a hearing on Harding’s motion to withdraw

his plea.”




                                             10
         It is clear to us that Harding’s motion that was filed within ten days after the

imposition of his sentence was “sufficient” to trigger the trial court’s consideration of his

request to withdraw his plea.       Indeed, the motion was captioned “MOTION TO

WITHDRAW GUILTY PLEA AND MOTION FOR NEW TRIAL.” The first sentence

of the motion stated that Harding, through his attorney, “moves to withdraw his guilty

plea . . . .” In the body of the motion, defense counsel asserted: “I have grave doubts

regarding the Defendant’s competence to waive his trial rights and enter into a plea

agreement.” And, among the prayers for relief was a request to “Withdraw his Guilty

Plea.”

         Because Harding properly raised in his post-trial motion a question regarding his

competence to waive his trial rights and enter a guilty plea, it is clear that Rule 4-242(h)

required the lower court to hold a hearing on Harding’s timely-filed motion to withdraw

his guilty plea. In Jackson v. State, 358 Md. 612, 624 n.5 (2000), the Court of Appeals

identified the predecessor of Rule 4-242(h)—then “Rule 4-242(g) dealing with

withdrawal of guilty plea”—as an example of mandatory rules that “expressly require a

hearing, not just the opportunity for one.” The Jackson Court emphasized that “the right

to a hearing is of fundamental importance,” and, “when not waived, we are loathe, in the

absence of extraordinary circumstances, to find its denial harmless.” Id. at 625; accord

Douglas v. State, 423 Md. 156, 181 (2011).

         We agree with the State’s concession that a remand is appropriate for the trial

court to conduct the hearing mandated by Rule 4-242(h). Accordingly, we will remand




                                             11
this case for a hearing on Harding’s timely motion to withdraw his guilty plea, and we

will not address the other questions he raised because they may well become moot.

                                        JUDGMENT OF THE CIRCUIT COURT
                                        FOR BALTIMORE COUNTY DENYING
                                        APPELLANT’S      MOTION        TO
                                        WITHDRAW     GUILTY   PLEA   AND
                                        MOTION FOR NEW TRIAL VACATED;
                                        CASE REMANDED FOR FURTHER
                                        PROCEEDINGS CONSISTENT WITH
                                        THIS OPINION; COSTS TO BE PAID BY
                                        BALTIMORE COUNTY.




                                          12
